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SYNOPSIS  OF  LECTURES 


ON 


FIXTURES  AND  EASEMENTS 


FOR 


THE  JUNIOR  CLASS— LAW  DEPARTMENT 


UNIVERSITY  OF  MICHIGAN. 


BY 
B.  M.  THOMPSON, 

JAY  PROFESSOR  OF  LAW. 


ANN  ARBOR: 

COURIER    HOOK    AND    ,I01!    I'KINTIXG    IIOUSE. 

isno. 


COI'VBIOIITKIi 

Hy     U.    ]M.   THOMI*HO:X, 

ISS9. 


PREFACE. 


TIh'  l'oIl(Kviii^  syiiDp.sirt  of  lectures  ii|«>ii  fixtures  and  ease- 
ineiits  eoiitains  a  mere  outline  of  the  lectures  aetuiilly  delivered. 
This  outline  is  designed  to  assist  the  student  in  uhtaining  full 
and  satisfactory  notes  upon  the  various  topics  treated.  It  is  ex- 
pected tiial  lie  will  take  individual  notes  in  the  cities  room  and 
will,  as  far  as  possilde,  examine  and  study  the  cases  cited. 

15.  M.  TIIOMTSON. 

I'-NIVKItSI  rv  OK   Mil  IIIIi.VN, 

Mari-ti  I,  INHi.  , 


LECTURE  I. 


1  iXTURES. 


A  (ixture  is  a  personal  chattel  attached  to  real  estate. 
Fixtures  are  divided  iiilo  two  classes.  1.  Chattel  fixtures. 
2,  Real  fixtures. 

A  chattel  fixture  is  a  fixture  which  retains  the  char- 
acter of  personal  property,  is  still  a  personal  chattel. 

A  real  fixture  is  a  fixture  which  has  become  a  part  of 
the  real  estate  to  which  it  is  attached,  is  no  longer  a 
personal  chattel  but  has  become  real  estate. 

This  classification  is  not  given  l)y  text  writers  but  we 
believe  the  terms  more  satisfactory  than  viocable  and  im- 
Diovahle  fixtures.  The  mere  definitiou  of  a  fixture  is  of 
no  value  whatever  in  solving  any  legal  controversy  over 
this  class  of  property.  The  very  kernel  of  all  such  con- 
troversies is  not,  as  to  whether  the  property  in  question 
is  or  is  not  a  fixture,  but  whether  or  not,  it  is  personal 
property  or  real  estate,  or,  as  we  have  classified  fixtures, 
whether  that  particular  fixture  is  a  chattel  fixture  or  a  real 
fixture. 

Wallcer  v.  Sherman,  20  Wend.,  03(5. 
Teaff  v.  Hewitt,  1  Oliio  .St.,  .")11. 

The  term  fixture  is  (|uite  moilern  and  is  not  found  in 
the  old   books  of  the  law.     At  first  whatever  was  affixed 


— G— 

to  till'  rciilty  lor  tlu'  purpose  of  VuMiiji  used  in  coMnection 
will)  it.  hecaiue  ri'al  estate  and  could  not  he  det,aclied 
witliout  tlieconstMit  ol   the  owner  of  tiic  land. 

Slieeii  V.  llickie,  •)  Mi  &  W.,  175. 

Eiwes  V.  Maw,  .'{  East,  37. 

Climie  v.  Wood,  L.  R.,  4  Exch.,  327. 

]\Ieiix  V.  Jaooljs,  L.  R.,  7  Eng.  &  Irish  App.,  481. 


Conse(piently  at  the  lirst  the  term  was  used  to  desig- 
nate a  particular  description  of  real  estate,  that  portion 
which  had  been  added  to  the  naked  land  in  the  way  of  im- 
provement. Fixture  then  meant  a  particular  part  of  the 
real  estate.  But  after  a  time  the  rule  that  a  fixture  was 
necessarily  real  estate  was  relaxed  in  favor  of  the  tenant 
manulacturer.  When  such  a  tenant  had  erected  buildings 
upon  the  leased  land,  or  annexed  personal  cjiattels  thereto 
for  tlie  purpose  of  enabling  him  to  engage  in  trade  and 
manufacture,  he  was  permitted  to  remove  sucii  fixtures 
during  his  term  if  he  could  do  so  without  material  injury 
to  the  realty. 

Prescott  V.  Wells,  3  Nev.,  82. 
Elwes  V.  Maw.,  3  East,  37. 
Perkerill  v.  Carson,  8  Iowa,  544. 
State  V.  Bonham,  18  Ind.,  231. 


These  exceptions  to  the  general  rule  were  gradually 
extended  in  England  in  favor  of  all  tenants  except  the 
agricultural  tenant.  In  his  case  it  is  still  held  in  England 
that  agricultural  fixtures  become  a  part  of  the  realty  and 
cannot  be  removed  by  the  tenant  without  the  consent  of 
the  landlord. 

Elwes  V.  Maw,  3  p]ast,  37. 


— 7— 

L'iul()ul)l('(lly  the  reason  for  the  distinction  made  be- 
tween the  tenant  fanner  and  the  tenant  niannlactiirer  is 
I'ound  in  the  fact  that  a  hu'ii^e  class  of  a<;ric'iiltiiral  tenants 
was  at  the  first  composed  of  serfs,  wlio  were  themselves 
regarded  as  real  fixtnres.  Tlie  serf  could  not  leave  the 
manor  without  permission,  he  was  ad  scrij^ta  glehae  and 
passed  with  a  i:ranl  of  the  estate.  It  followed  as  a  matter 
of  course  that  all  improvements  to  the  land  made  by  the 
serf  were  regarded  as  constituting  a  part  of  the  realty  and 
made  for  the  benefit  of  the  lord.  Thus  the  rule  became 
so  firmly  established  that  it  could  not  well  be  disregarded 
by  the  courts.  On  the  other  hand  the  manufacturer  was 
from  the  first  a  free  man.  In  his  case  there  was  no  prece- 
dent in  favor  of  the  landlord,  no  judicial  obstacles  to  be 
overcome  in  doing  him  simple  justice  and  the  courts  could 
rightly  hold  that  personal  property  used  )>y  the  tenant  to 
enable  him  to  carry  on  his  business  successfully,  although 
lie  might  necessarily  be  obliged  to  attach  it  to  the  land  or 
even  construct  with  it  a  building,  was  still  his  personal 
property  and  might  be  removed  by  him,  provided  he  could 
do  s  without  material  injury  to  the  realty.  The  reason 
given  by  the  courts  for  making  a  distinction  between  one 
class  of  tenants  and  another  was  that  manufacture  and 
trade  ought  to  be  encouraged.  A  better  reason  is,  tliat  to 
permit  a  tenant  to  remove  fixtures,  which  he  is  under  no 
obligations  to  put  upon  the  land,  does  the  landlord  no 
wrong  and  gives  the  tenant  his  own.  It  is  true  that  man- 
ufacture and  trade  should  be  encouraged,  so  should  every 
man,  in  any  legitimate  business,  be  encouraged  to  make 
that  business  successful.  The  rule  that  compels  the  farm 
tenant  to  work  his  farm  in  the  very  condition  lie  received 
it,  or  give  all  the  improvements  he  makes  in  the  way  of 
buildings  and  other  fixtures  to  the  landlord,  is  a  great  out- 
rage.    In  this  country  it  is  not   the  policy  of  the  law  to 


— 8— 

r.ivor  ;iiiy  piirliciilar  class.  The  blacksmith  who  leases  a 
l>i('C('  of  ground  ami  erects  thereon  a  shop  for  the  purpose 
(iT  his  (rade,  is  not  re!j;ar(led  as  beiiii;  entitled  to  any  more 
(•nii-i(lci;itii>ii  Ih.iii  the  farmer  who  leases  a  farm  and  erects 
I  hereon  a  cider  mill  for  the  purposes  of  increasing  the 
jtrolils  of  his  i'arni.  The  courts  of  this  country  have  re- 
pi'iiliMlly  cri'icised  the  rule  laid  down  in  Elwes  vs.  Maw^ 
hut  have  never  directly  disregarded  it.  The  books  are  full 
of  cases  where  a  destinction  is  made  between  trade  fix- 
tures and  others,  although  the  strong  current  of  authority 
is  against  making  any  such  distinction. 

Van  Ness  v.  Packard,  2  Pet.,  137. 
Holmes  v.  Tremper,  20  John.,  29. 
Hatttick  V.  Stober,  11  Ohio  St.,  482. 
Wing  v.  Gray,  30  Vt.,  261. 
Dubois  v.  Kelly,  10  Barb.,  406. 

As  we  have  said,  any  chattel  annexed  to  tiie  realty  is 
a  fixture,  but  to  constitute  a  real  fixture  by  which  means 
personal  property  is  converted  into  real  estate  there  must 
be: 

1.  Actual  or  constructive  annexation  of  the  chattel  to 
the  realty. 

2.  Adaptation  of  the  chattel  annexed  to  the  use  or 
purpose  for  which  that  part  of  the  realty  to  which  it  is 
annexed  is  designed. 

3.  The  intention  of  the  party  making  such  annexation 
to  make  such  chattel  a  permanent  addition  to  the  realty. 

Tealf  V.  Hewitt,  1  Ohio  St.,  511. 
Fillnian  v.  De  Lacy,  80  Ala.,  103. 

ACTUAL   ANNEXATION. 

What  is  meant  by  actual  annexation  is,  that  the  chat- 


— 0  — 

tel  must  be  attached  to  tlie  realty  by  somcl  liiii^i  inori'  llian 
its  own  \vei<iht,  mere  force  ol"  icinvily.  MtMcly  plai'iii;;  a 
lieavy  article  upon  the  ground  does  not  annex  it,  l)ut  if  the 
«;round  is  in  any  way  prepared  to  receive  tiie  chattel,  as 
wiicM  a  slone  doorstep  is  placed  in  position,  I  hat  is  siilli- 
cient  to  constitute  actual  annexation. 

Sullivan  v.  Toole,  126  Hun.,20:{. 
Bishop  V.  Bishop,  1  Kernan,  123. 
Walker  v.  Sheriuan,  '20  WtMid.,  (Wd. 

As  to  the  manner  and  evient  that  a  real  fixture  must 
be  attached  the  rulini;- in  the  did'eriMit  states  is  not  uiii 
form.  It  is  held  in  some  of  the  states  that  it  must  be  at- 
tached in  such  a  manner  that  it  cannot  be  removed  with- 
out serious  injury  to  the  realty.  For  instance,  the  supreme 
court  of  Vermont  holds  that  machinery  used  in  a  factory 
in  order  to  become  a  real  fixture  must  be  permancMitly 
attached  to  the  buildini;;  that  ifis  not  suiricient,  if  it  is 
merely  so  attached  as  to  make  it  steady  in  operation  and 
to  enable  the  owner  to  use  it  as  a  nnichine;  that  the  tiaie 
character  of  the  article  as  to  whether  it  is  a  chattel  or  real 
estate  must  plainly  appear  from  an  inspection  of  the  prop- 
erty itself,  its  nature,  the  mode  and  extent  of  the  annexa- 
tion and  its  object  and  purpose,  from  all  of  which  the  in- 
tent of  such  annexation  is  indicated. 

Hill  V.  Went  worth,  2S  Vt.,  428. 
Sweetzer  v.  Jones,  .%  Vt.,  317. 

To  the  same  elfect  are  the  following  cases, 

Lacy  V.  Giboney,  3G  Mo.,  320. 
Swift  V.  Tlionipsoii,  t)  Conn.,  63. 
Wade  V.  Johnson,  25  Geo.,  331. 
Gale  V.  Ward.,  14  Mass.,  3r,2. 
Buruside  v.  Twichell,  43  N.  H.,  30(1. 


—  10— 

'I'lic  (•(lints   ill   some  (»r  llie  slates  have  regarded  the 
slijrhtest  aiiiK'xalioii   as  sullicieiit,  while  a  few  have  gone 
nearly  to  the  exteiil  of  holding  that  a  chattel  could  be 
come  a  part  of  the  realty  without  being  in   any  manner 
attached. 

Walker  v.  Sherman,  20  Wend.,  636. 
Farrar  v.  Stackpole,  6  Me.,  154. 
Strickland  v.  Parker,  54  Me.,  263. 
Smith  P;ii)er  Co.  v.  Serviii,  130  Mass.,  511, 


Farrar  vs.  Stackpole  and  Strickland  vs.  Parker  are 
authorities  for  the  construction  of  a  deed  rather  than  for 
the  definition  of  a  real  fixture.  The  wording  of  an  agree- 
ment made  by  the  parties  often  determines  the  true  char- 
acter of  a  fixture.  It  is  well  settled  that  parties  by  their 
agreement  may  impress  upon  a  fixture,  or  a  chattel  even, 
whatever  character  they  choose.  They  may  agree  that 
real  fixtures  shall  be  regarded  as  chattel  fixtures,  or  that  a 
chattel  fixture  or  mere  chattels,  shall  be  regarded  as  a  p^rt 
of  the  realty,  and  the  courts  will  give  full  force  and  effect 
to  their  agreement. 

Smith  V.  Wagoner,  50  Wis.,  155. 
Hunt  V.  Bay  St.  &e.,  97  Mass.,  279. 
Titrt  V.  H(Mt()n,  53  X.  Y.,  377. 
Fratt  vs.  Whittier,  58  Cal.,  126. 
Crippin  v.  M(Mris()n,  13  Mich.,  23. 


For  instance,  if  the  grant  describes  the  property  as 
having  a  particular  character,  as  "a  Saw  Mill,"  the  court 
will  construe  the  deed  as  clearly  indicating  an  intent  on 
the  part  of  the  grantor  to  convey  a  saw  mill,  a  particular 
saw  mill  therein  designated,  and  everything  in  and  about 


—11— 

tlic   mill,  necossary  to  its  coiiiplelc  (Miiiii»iiiciil    as  a  saw 
mill,  will  pass  lo  the  grantee. 

Shelton  v.  Ficklin,  82  Gratt.,  Til. 
Bigler  v.  Nat'l  Jik.  6cv.,  2(1  lluii.,  520. 
McRac  V.  Central  Nat'l  Bk.,  m  N.  Y.,  4S!». 
Voorheis  v.  Freeman,  2  W.  &  S.,  IK). 
Pyle  V,  Pennoch,  2  do,  890. 
United  States  v.  Appleton,  1  Sum.,  4fl2. 

On  tlie  other  hand  if  the  grant  simply  conveys  certain 
lands  and  there  is  nothing  in  the  language  used  to  indicate 
that  the  grantor  intended  to  impress  upon  the  tcnouKMit 
•or  any  part  of  it  a  special  character,  nothing  will  i);is>  ex- 
cept the  land  and  real  lixtnres. 

Case  cited  above. 

CONSTRUCTIVE   ANNEXATION. 

In  many  machines  there  are  certain  parts  which  are 
never  attached  or  affixed  to  the  machine  itself  and  other 
parts  which  are  sometimes  attaclied  and  at  other  times  de- 
tached, belts,  chains,  saws,  levers,  mill  stones,  etc.,  etc.,  for 
example.  It  is  well  settled  that  a  machine  or  machinery 
is  to  be  treated  as  a  whole,  and  that  if  a  machine,  or  a 
quantity  of  machinery,  is  so  attached  as  to  become  a  real 
fixture,  every  part  of  such  machine  or  machinery,  wliether 
individually  attached  or  not,  is  a  part  of  such  real  lixture. 
It  is  said  to  be  constructively  attached. 

Fisher  v.  Dixon,  12  CI.  &  Fin.,  812. 
Deal  V.  Palmer,  72  N.  C,  58?.. 


No  chattel  can  be  a  lixture  unless  it  is  cajtaMc  of  be- 
ing permanently  attached  to  the  realty. 
Scudder  v.  Anderson,  54  Mich.,  122. 


—12— 


AD  APT  ATI  ox   TO    I'SE. 


A  real  fixture  must   he  adupted  to  the  use  or  purpose 
of  tljiit  part  of  the  realty  to  which  it  is  annexed. 

Campbell  v.  O'Xeii,  CA  Pa.  St.,  290. 
Kortiiiaii  V.  (i(i>i)|)i'i-,  14  Ohio  St.,  5.J8. 


The  supreme  court  of  Minnesota  speaking  of  the  two 
essentials  of  a  real  fixture,  attachment  to  the  realty  and 
adaptal)ility  to  use,  says:  ''To  make  a  chattel  a  fixture,  it 
must  not  be  merely  essential  to  the  business  of  the  struc- 
ture, but  it  must  be  attached  to  it  in  some  way,  or  at  least, 
it  must  be  mechanically  fitted  so  as,  in  ordinary  under- 
standiniT,  to  constitute  a  part  of  the  structure  itself.  It 
must  be  permanently  attached  to,  or  be  the  component 
part  of  some  erection,  structure  or  machine  which  is  at- 
tached to  the  freehold,  and  without  which  the  erection, 
structure  or  machine  would  be  imperfect  and  incomplete." 

The  same  court  defines  constructive  attachment  as  ex- 
isting when  a  chattel  has  been  actually  attached  and  then 
tempoiarily  removed  for  repair,  or  where  it  is  a  compo- 
nent part  of  a  machine  which  is  permanently  attached. 

Walford  v.  Baxter,  33  Minn.,  12. 

Farmers  Loan,  &c.,  Minn.  &c.  v.  35  Minn.,  5-13. 


INTKNTION    TO    MAKE    TUE   CUATTEL    A    PERMANENT    ADDITION 
TO   THE    REALTY. 

To  convert  a  chattel  into  a  real  fixture  the  person 
making  the  annexation  must  intend  to  make  such  chattel 
thereby  a  permanent  addition  to  the  realt3^  The  inten- 
tion with  which  the  annexation  is  made  is  often  the  essen- 
tial test  which  determines  its  character  as  a  lixture.     And 


—13— 

what  is  licrc  mciiiit  by  intent  ion,  is  not  the  secret  will  and 
purpose  ()(■  I  lie  party,  not  the  thon«:;lit  an<l  intent  nestling; 
in  his  own  breast  and  known  only  to  liinisell",  but  what 
his  surroundin«:;s,  his  conduct  and  ids  acts,  declare  and  an- 
nounce to  (lie  public  to  be  his  intention.  The  manner  in 
which  a  fixture  is  annexed  and  its  adaptability  to  use  are 
therefore  really  tests  of  the  intent  of  the  party  niakiufi; 
the  annexation  and  only  indirectly  of  the  character  of  the 
lixture.  And  so  inllexible  is  the  rule  that  the  intent  is 
shown  by  the  surrounding  circumstances  and  by  the  acts 
and  conduct  of  the  party,  that  the  person  making  the  an- 
nexation will  not  be  permitted  to  testify  what  his  unex- 
pressed mental  intention  in  fact  was, 

Treudway  v.  Sharon,  7  Nev.,  o7. 
Tate  V.  Blackburn,  48  Miss.,  1, 
Manwaring  v.  Jenison,  61  Mich.,  117. 
Wlieeler  v.  Bedell,  40  Mich.,  603. 
Beiikley  v.  Forkner,  117  lud.,  176. 


The  intent  however  is  a  question  of  fact  for  the  jury 
to  lind  and  not  a  ([uestion  of  law  for  the  court. 
Seeger  v.  Pettit,  77  Pa.  St.,  437,  441. 

Although  the  intent  with  which  a  party  annexes  a 
chattel  is  so  important  in  determining  whether  or  not  it 
is  a  real  lixture,  still  a  mere  intent  to  make  a  chattel  a 
permanent  addition  to  the  realty  is  alone  insufficient.  The 
intent  must  not  only  be  clearly  expressed  but  there  must 
be  some  positive  act  tending  to  give  effect  to  such  intent 
by  partially  at  least  annexing  the  chattel.  Materials  col- 
lected for  the  purpose  of  erecting  a  permanent  building, 
continue  personal  property  until  wholly  or  in  part  con- 
structed into  such  building. 


—14— 

Cook  V.  Whiting,  10  111.,  480. 
Woodinun  v.  Pease,  17  N.  H.,  282. 
Huriisi.le  v.  Twit<'lu'll,  4:5  N.  H.,  390, 
Joliiisori  V.  MeliHlly,  4.S  Ta.  St.,  308. 
Exparta  Astbury  L.  R.  4  Ch.  App.,  030. 
Miller  v.  Wilson,  71  Iowa,  GIO. 

Contra. 

Conklin  v.  Parsons,  2  Plnney,  264. 
Ripley  v.  Paige,  12  Vt.,  353. 
Spruhen  v.  Stout,  62  Wis.,  617. 


The  converse  of  the  above  rule  holds  true.  When  a 
chattel  has  been  made  a  real  fixture,  a  mere  intent  to  sever 
it  and  reconvert  it  into  a  chattel  is  of  no  force  or  effect. 
The  intent  must  be  evidenced  by  an  actual  severence. 

Rogers  v.  Brokaw,  2-5  N.  J.  Eq.,  496. 
Tate  v.  Blackburn,  48  Miss.,  1. 
Henainway  v.  Cutler,  ol  Me.,  407. 

In  the  absence  of  proof  to  the  contrary,  courts  will 
presume  that  property,  real  or  personal,  retains  its  char- 
acter unchanged.  Therefore,  when  the  contention  is  the 
character  of  a  fixture,  it  being  conceded  that  it  was  once 
personal  property,  t!ie  burden  of  proof  is  upon  the  party 
claiming  that  it  has  lost  its  character  as  a  chattel  and  has 
become  real  estate,  to  show,  by  a  prei)onderance  of  evi- 
dence, tliat  such  is  the  fact. 

Capeu  V.  Peck  ham,  3o  Conn.,  88. 
Hill  V.  Wentwortb,  28  Vt.,  42S,  437. 


LECTURE  II. 


FIXTUKES   CONTINUKD. 

When  the  owner  of  realty  annexes  a  chattel  thereto 
and  continnes  to  be  the  absolute  owner  ol'  the  realty  it  is 
ol"  no  iini)ortance,  as  a  matter  of  course,  wliether  such  fix- 
ture is  a  chattel  or  a  real  fixture,  since  in  either  case  the 
title  remains  in  the  same  person.  If  such  owner,  however, 
sells  the  real  estate,  or  mortgages  it,  or  dies,  then  the 
character  of  the  fixture  becomes  at  once  important,  since 
in  case  it  is  a  real  fixture,  it  belongs  to  the  vendee,  or  the 
mortgagee,  or  the  heir,  while  if  it  is  a  chattel  fixture,  it 
belongs  to  the  vendor,  the  mortgagor,  the  executor  or 
administrator.  Again,  if  the  fixture  is  annexed  by  a  ten- 
ant for  years  or  for  life,  its  character  is  at  once  important 
since  upon  tlial  will  depend  its  ownership.  If  it  is  a  real 
fixture  it  belongs  to  the  landlord  or  the  remainder  man,  if 
a  chattel,  it  belongs  to  the  tenant  or  his  executor  or 
administrator.  The  character  of  a  fixture  is  also  important 
in  dclcnnining  the  rights  of  two  other  classes  of  persons: 
the  vendor  of  the  chattel,  who  claims  a  lien  for  the  pur- 
chase i)rice,  or  the  mortgagee  of  the  chattel  and  the  mort- 
gagee of  the  realty,  and  the  vendor  and  vendee  of  the 
realty  where  it  has  been  sold  under  contract  and  default 
has  been  made  by  the  vendee. 


—16— 

It  will  he  more  satisfactory  to  consider  those  coiiflict- 
iiiii  interests  separately,  hut  since  the  relation  between 
the  vendor  and  vendee,  niortgaf:;or  antl  mortgagee,  heir 
and  executor  and  the  vendee  in  default  under  a  hind  con- 
tract and  the  vendor,  is  substantially  the  same,  we  shall 
group  them  together. 

As  we  have  seen,  the  important  test,  to  which  all 
others  are  subordinate,  is  the  intent  of  the  party  annexing 
the  fixture  at  the  time  he  annexed  it.  And  since  every 
man  is  [)resumed  to  be  inlluenced  by  those  motives  which 
would  intliience  other  men  under  like  circumstances  the 
relation  which  the  i)erson  bore  to  the  title  of  the  realty  at 
the  time  he  annexed  the  fixture  is  a  very  important  and 
often  the  controlling  factor,  in  determining  the  character 
of  the  fixture.  It  goes  without  saying  that  the  absolute 
owner  of  realty  in  adding  betterments  thereto,  would  do 
so  with  a  very  different  purpose  and  intent  than  he  would 
have,  if  he  was  a  mere  leaseholder  of  the  premises  for  a 
short  term  of  years. 

It  may  be  stated  as  a  general  rule,  that  when  the 
owner  of  the  realty  annexes  a  chattel  and  after  such  an- 
nexation it  is  to  the  interest  of  the  owner,  that  it  should 
remain  affixed,  and  it  would  be  to  his  detriment  as  the 
owner  of  both  the  realty  and  the  fixture  to  remove  the 
fixture,  that  it  will  be  presumed  he  intended  to  make  such 
fixture  a  permanent  addition  to  the  realty,  that  he  intended 
it  to  l)e  a  real  fixture. 

Fisher  v.  Dixon,  12  CI.  and  Finl.,  312. 

Cliraie  v.  Wood,  L.  R.,  4  Ex.,  328. 

Holland  v,  Hodgson,  L.  R.,  7  C.  P.,  328. 

Meux  V.  Jacobs,  L.  R.,  7  Eng.  &  Irish  App.,  481,  490. 

Dudley  v.  Foote,  G3  N.  H.,  57. 

Oliver  v.  Brown,  SO  Me.,  542. 

When  tiie  owner  of  realty  constructs  a  building  for 


—17— 

iiiaiiiiractiirin^c  i»nri)oses  aiul  it  is  so  occupied,  all  the  ma- 
chinery and  appliances  used  in  conneclion  with  the  busi- 
ness of  inanuracturiiiji,  whether  attached  in  any  way  to  the 
building  or  not,  become  a  jjart  of  the  realty  and  a  sale  or 
mGrt«!;aj5e  of  the  realty  and  such  factory  carries  with  it 
such  machinery  and  appliances  without  any  mention 
bein<:;  made  thereof. 

Voorhees  v.  MeGinnis,  4.S  N.  Y.,  27.S. 
Pierce  v.  George,  108  Mass.,  78. 
Parsons  v.  Copelaiid,  38  Me.,  oST. 
Otuniwa  Mill  Co.  v.  Hawley,  44  Iowa,  oT. 
.Stockwell  V.  Campbell,  3!»  Conn.,  3G2. 
Hoskin  v.  AVoociward,  45  Pa.  St.,  42. 
Voorlieis  v.  Freeman,  2  W.  A:  S.,  116. 


And  wdien  machinery  of  a  permanent  character  and 
essential  to  the  business  for  which  a  buildinji  is  used  are 
placed  in  such  building  by  the  owner  of  the  realty,  and 
the  machinery  is  used  therein,  it  will  pass  bj'^  a  convei^ance 
of  the  building,  although  it  may  be  severed  and  removed 
without  material  injury  to  the  machinery  or  to  the  building. 

Winslow  V.  Merchants  Ins.  Co.,  4  Mete,  306. 

Greeu  v.  Ptiillips,  26  Gratt.,  752. 

Hart  V.  Sheldon,  34  Hun.,  38. 

Lyle  V.  Palmer,  42  Mich.,  214. 

Parsons  v.  Copeland,  38  Me.,  537. 

Foote  V.  Gooch,  !>6  N.  C,  265. 

The  Massachusetts  rule  on  this  subject  contains  an 
important  exception  to  this  general  proposition.  In  JIc- 
Connell  v.  Blood,  1'2.'>  Mass.,  47,  the  genc^ral  rule  is  given 
that  "whatever  is  placed  in  a  building  b}^  the  owner  or 
mortgagor  to  carry  out  the  purpose  for  which  the  building 
was  erected  and  permancMitly  to  increase   the  value  for 


—18— 

occupation  or  use,  allliou^li  it  may  ho  removed  without 
injury  lot  lie  build  in*;  or  itself,  iiecomes  a  [)artof  the  realty.'' 
It  would  appear,  however,  that  the  /^M/y>o«e  for  loh'ich  the 
huildiiui  iDas erected  is  an  iiiiporlaiil  factor  in  determining 
the  character  of  a  fixture;  that,  for  instance,  if  a  huilding 
was  erected  for  a  flouring  mill,  all  machinery  adapted  for 
llouriiii:  mill  puri>()ses  placed  therein  for  use,  would  be- 
couu'  ri\d  lixtures,  but  that  if  afterward  the  owner  of  such 
building,  after  it  was  erected,  should  convert  it  into  a  boot 
and  shoe  factory,  machinery  adapted  to  that  purpose 
placed  in  the  building  would  be  chattel  lixtures. 

McCoiinell  v.  Blood,  128  Mass.,  47. 
Soutlibridge  v.  Massoii,  147  Mass.,  500. 


Or  if  lie  converted  it  into  a  planing  mill,  machinery 
adapted  to  that  business  would  be  chattel  fixtures. 

Carpenter  v.  Walker,  140  Mass.,  416. 
Maguire  v.  Park,  140  Mass.,  21. 


VKNDOFi   OR    MORTGAGEE    OF   THE   CHATTEL. 

The  (juestion  of  the  character  of  a  lixture  frequently 
arises  between  the  mortgagee  of  the  land,  and  a  third  party 
(daiming  title  to  or  a  lien  upon  the  fixture,  as  for  instance, 
where  the  owner  of  the  realty  purchases  machinery  under 
a  contract  l)y  the  terms  of  wliicli  the  seller  is  to  have  a 
lien  thereon  until  paid  for,  or  title  is  not  to  pass  until  paid 
for,  and  such  machinery  is  annexed  to  the  realty.  In 
such  a  case  as  between  the  owner  of  the  realtj^  and  the 
vendor  of  the  chattel  the  fixture  is  a  chattel  fixture,  but 
as  l>etween  such  vendor  and  a  subsequent  mortgagee 
without  notice  it  is  a  real  fixture,  and  if  it  is  so  attached^ 


~1\)- 


thiit  it  cuiiiKtl  1)1'  removed  witliout  injury  lo  the  really  it 
is  a  real  fixture  as  l)etvveen  the  vendor  and  a  ]>rior  mort- 
gagee. 

Hemly  v.  Dijikerholf,  oT  Cal.,  .'!. 

Eiives  V.  Estes,  10  Kan.,  MA. 

Haven  v.  Emery,  33  N.  H.,  GG. 

Davenport  v.  Sliants,  43  Vt.,  546. 

K^nowiton  v.  Jolmson,  37  Mich.,  47. 

Inj^er.soll  v.  liarnes,  47  Mich.,  I(i4. 

Bass  Foundery  &.c.  v.  Gallentine,  OiJ  Ind.,  o25. 

Hamilton  v.  Huntley,  78  Ind.,  521. 

Foote  V.  Gooch,  96  N.  C,  265. 

Rowand  v.  Anderson,  33  Kan.,  2(>4. 

Freeman  v.  Leonard,  99  N.  C,  274. 

Grand  Island  &c.  v.  Frey,  25  Neb.,  66. 

Boston  &c.  V.  Bankers  Tel.  Co.,  3G  Fed.  Rep.,  288, 


If  the  owner  has  expressed,  at  the  time  he  annexed 
the  machinery,  a  clear  and  unequivocal  intent  not  to  make 
such  machinery  a  part  of  the  realty,  as  when  he  gives  a 
chattel  mortgage  upon  it,  or  at^rees  in  writing  that  it  shall 
not  become  a  permanent  fixture,  it  will  remain  personal 
property,  unless  so  attached  as  to  make  its  removal  im- 
possible without  considerable  injury  to  the  realty. 

Tifft  v.  Horton,  53  N.  Y.,  377. 

Stokoe  V.  Upton,  40  Mich.,  581. 

Burrill  v.  Wilcox  Lumber  Co.,  (Mich.),  1887. 

Walker  v.  Grand  Rapids,  &c.,  70  Wis.,  92. 


The  reason  for  the  above  rule  governing  the  interest 
of  the  vendor  of  the  chattel  and  the  mortgagee  of  the 
realty  would  seem  to  be  this:  In  case  of  a  prior  mortgagee, 
it  is  the  vendor's  fault  if  the  chattel  is  so  annexed  that  its 
•removal  will  injure  Ihe  real  estate,  the  mortgagees  secur- 


—20— 

ity,  and  tlierefore  the  vendor,  the  party  in  fault,  and  not 
the  niorti;agee,  an  innocent  party,  must  suffer;  and  in 
case  of  a  sul)se(|uiMit  inorti;a<;ee  without  notice,  the  vendor 
is  lilvewise  at  fault,  in  suflerini^  the  owner  of  the  land  to 
he  the  apparent  owner  oi'  the  fixture,  thus  enabling-  him 
to  obtain  a  loan  n[)on  the  land  thus  apparantly  enhanced 
in  value. 

FIXTURES    WRONGFULLY    ANNEXED   TO   THE    REALTY. 

Chattels  are  sometimes  annexed  to  the  soil  without 
any  contract  or  agreement  i^etween  the  owner  of  the  land 
and  the  owner  of  the  chattel. 

When  the  owner  of  the  soil  erects  a  structure  with 
the  materials  of  another,  it  is  held  that  so  long  as  the 
identity  of  the  original  materials  can  be  shown,  the  right 
of  the  original  owner  to  his  property  continues  and  that 
he  may  follow  and  take  it:  When,  however,  the  property 
has  lost  its  identity,  it  ceases  to  exist  as  a  cliattel  and 
belongs  to  the  owner  of  the  land. 

Cress  v.  Mar.ston,  17  Vt.,  533. 
White  v.  Twitcliell,  25  Vt.,  620, 
Pierce  v.  Goddard,  22  Pick.,  559. 
Shoemalver  v.  Simpson,  IG  Kati.,  43. 

If  a  stranger  erects  a  building,  with  his  own  materials 
upon  the  land  of  another,  without  the  owners  consent, 
such  building  belongs  to  the  owner  of  the  soil  and  cannot 
be  removed  against  his  will. 

Tread  way  v.  Sharon,  7  Nev.,  34. 
Madij^an  v.  MeCarthy,  108  Mass.,  376. 
Heubcliaiaiin  v.  McHenry,  29  Wis.,  <i55. 
Kimball  v.  Adams,  52  do,  554. 
Hunt  V.  M.  P.  R.  R.,  76  Mo.,  115. 
Graliam  v.  R.  R.  Co.,  36  Ind.,  463. 
Preston  v.  R.  R.  Co.,  70  Tex.,  375. 


—21— 

This  is  llie  rule  alllioiigh  the  attachments  were  made 
by  one  in  possession  under  a  claim  of  title. 

Graham  v.  Coiinersville  R.  R.,  36  Irul.,  4()3. 
Stilluian  v.  Hamer,  8  Miss.,  421. 
Hunt  V.  M.  P.  R.  R.,  76  Mo.,  115. 

Contra. 

Atchison  R.  R.,  (fee.  v.  Morgan,  Kan.,  (1889). 

In  case  the  annexation  is  rightl'ully  made  by  a 
stranger  under  an  agreement  with  the  owner  of  the  soil, 
the  fixture  will  remain  personal  property,  unless  so  an- 
nexed as  to  make  the  removal  an  injury  to  the  realty. 

Memphis  Gas  Liglit  Co.  v.  State,  6  Cald.,  310. 

Ashman  v.  Williams,  8  Pick.,  402. 

Yater  v.  Mullen,  23  Tnd.,  o62. 

Yater  v.  Mullen,  24  Ind.,  277. 

Raddin  v.  Kidder,  111  Mass.,  44. 

Fuller  V.  Tabor,  39  Me.,  519. 

Ingalls  V.  St.  Paul's  M.  &  M.  R.  Co.,  39  Minn.,  479. 

When  a  chattel  is  annexed  by  a  part  owner  of  the 
realty,  it  continues  personal  property.  The  following  is 
the  rule  governing  this  class  of  cases  as  laid  down  by  the 
supreme  court  of  this  state :  Where  the  ownership  of  the 
land  is  in  one  person  and  the  thing  affixed  in  another,  and 
in  its  nature  it  can  be  moved  without  injury  to  the  land, 
it  cannot  in  contemplation  of  law  l)ecome  a  part  of  the 
realty,  but  must  necessarily  remain  personal  property; 
and  the  fact  that  the  owner  of  the  thing  annexed  is  the 
owner  of  an  undivided  interest  in  the  land,  does  not 
change  the  rule,  a  thing  cannot  as  to  an  undivided 
interest,  be  personal  property  and  as  to  another  undivided 
3 


—22— 

idtcrcsl.  Iti'  ii'iil  t^slalc,  it  must,  be  wholly  one  or  the  otlier. 

AdaiUH  V.  Lee,  HI  Mich.,  440. 
Robertson  v.  Coi-viett,  .'50  Mich.,  777. 
Scinlder  v.  AiHh'r.soii,  "iJ  Mjcli.,  l'2'2. 


OKN A.MKNTAI,    AND    IIOUSKIIOI.I)    l-I.\TURES. 

Aiul  in  this  coiinectioii  we  call  your  attention  to  that 
class  of  fi.xtures  known  as  ornamental  and  household. 
It  is  a  <.jeneral  rule  that  articles  of  household  use,  such  as 
1:11111)-;,  '"handeliers  aii<l  other  contrivanees  for  lighting 
houses,  and  aj»i)aratus  for  heating  houses,  which  are 
all  ached  by  their  mere  weight,  or  are  fastened  by  hooks, 
or  by  being  screwed  upon  gas  pipes,  are  regarded  as  furni- 
ture and  are  personal  property. 

Vaughn  v.  Haldeman,  33  Pa.  St.,  522. 
Jarechi  v.  Philharnioiiie  Scy.,  79  Pa.  St.,  403. 
Roj^ers  v.  Crow,  40  Mo.,  91. 
Towne  v.  Fiske,  127  Mass.,  12o. 


There  are,  however,  cases  which  hold  that  such 
li.xtures  are  to  be  regarded  as  permanent  parts  of  the  house, 
unless  the  contrary  intention  of  the  person  making  the 
annexation  is  made  to  appear. 

Johnson  v.  Wiseman,  4  Mete.  (Ky.),  357. 
Keeler  v.  Keeler,  31  N.  J.  Eq.,  181. 
Fratt  V.  Whittier,  58  Cal.,  12G. 


DEEDS. 

In  England  where  they  have  no  registration  laws  it 
has  always  been  held,  that  charters  and  deeds  and  other 


—2:3— 

evidence  of  title  in  the  liaiids  oi"  the  grantor,  or  devisor, 
l)ass  with  the  estate  to  the  grantee  or  legatee. 
Lord  Buckliurst's  Case,  1  Co.,  1. 

The  reason  for  the  rule  is,  that  such  deeds  are  neces- 
sary evidences  of  title  and  are  valuable  to  the  owner  of  the 
estate  and  to  no  other  person,  and  raay  be  regarded  as 
essential  to  the  quiet  and  undisturbed  enjoyment  of  the 
estate,  as  Lord  Coke  expresses  it,  they  are  "  the  sinnews 
of  the  land/' 

There  are  no  adjudicated  cases  upon  this  subject  in 
the  United  States.  Registry  laws  are  universal  and  they 
make  a  certified  copy  of  the  record  evidence.  It  is  prob- 
able, however,  that  if  the  grantor  should  have  in  his 
possession  an  unrecorded  deed  that  the  grantee  could 
compel  him  to  surrender  it  up  or  place  it  on  record.  And 
it  has  been  held  in  Alabama  that  a  land  warrant  author- 
izing the  location  of  a  certain  amount  of  government 
land  is  real  estate,  and  goes  to  the  heir  and  not  to  the 
executor. 

Atwood  v.  Beck,  21  Ala.,  590. 


The  English  courts  have  gone  so  far  as  to  hold  that 
the  box  in  which  title  deeds  are  kept  is  real  estate,  and  is 
not  subject  to  larceny. 
1  Hale  5,  10. 


Deeds,  however,  do  not  go  to  the  heir  strictly  because 
they  are  allixed  to  the  realty,  they  are  not  allixed,  but 
because  they  are  essential  to  the  enjoyment  of  the  estate 
and  are  therefore  regarded  as  a  part  of  it. 


LECTURE  III. 


FIXTUHKS    AS    1!P:T\VEKN    LANDLORD    AXD   TENANT. 

Iir  consideriiij;  the  character  of  a  fixture  annexed  to 
the  leasehold  estate  by  the  tenant,  it  is  important  to  bear 
in  mind  the  contract  relations  existing  between  the  tenant 
and  his  landlord,  as  to  the  estate.  The  consideration 
which  the  tenant  is  to  render  to  the  landlord  in  the  way 
of  rent  we  do  not  consider,  since  it  has  nothing  to  do  with 
the  question  we  are  examining.  In  the  absence  of  an 
express  agreement  there  is  an  implied  covenant  on  the 
part  of  the  tenant,  that  he  will  commit  no  waste  and  that 
he  will  at  the  end  of  the  term  surrender  up  the  premises 
in  the  like  condition  in  which  he  received  them.  He 
must  in  short  do  nothing  during  the  term  which  will  work 
a  detriment  to  the  estate,  but  on  the  other  hand  he  is 
under  no  obligation  to  enhance  its  value;  therefore,  in 
most  cases,  the  character  of  a  fixture  annexed  by  a  tenant 
is  determined  by  the  answer  given  to  the  question,  can  it 
be  removed  and  leave  the  premises  in  the  condition  in 
whicli  they  were  received?  If  that  question  is  answered 
in  the  aliirmative,  it  is  a  chattel  fixture,  if  in  the  negative, 
it  is  a  real  fixture. 

Heffuer  v.  Lewis,  lli  Pa.  St.,  302. 

Lemar  v.  Miles,  4  Watts,  330. 

Dist.  Town  of  C.  v.  Morebeail,  43  Iowa,  466. 


—25— 

Walton  V.  Wray,  'A  Iowa,  't'M. 
Melhoj)  V.  ISIienhart,  70  Iowa,  <i85. 
Ilarkey  v.  Cain,  (59  Texas,  140. 


It  does  not  follow,  however,  that  every  betterment 
made  by  the  tenant  can  be  removed  when  such  removal 
would  leave  the  premises  in  no  worse  condition  than  he 
received  them.  When  tiiere  are  buildings  upon  the 
premises  all  repairs  made  to  such  ])uildiiiirs  become  a 
part  thereof  and  cannot  be  removed.  Such  repairs  are 
not  separate  fixtures  but  a  part  of  the  building  considered 
as  a  fixture. 

Murry  v.  Moross,  27  Mich.,  203. 
State  V.  Elliot,  11  N.  H.,  o40. 
Leach  v.  Thomas,  7  C.  P.,  o27. 
Gaffield  v.  Hapgood,  17  Pick,  192. 


Repairs  to  a  building  do  not  include  additions  which 
can  be  considered  and  treated  as  separate  structures,  nor 
partitions  dividing  rooms  in  the  building,  providing  such 
additions  and  partitions  can  be  removed  and  leave  the 
building  in  the  same  condition  it  was  originally''. 

Aside  from  additions  to  a  building  and  temporary 
partitions  which  can  be  removed  and  leave  the  building 
in  its  original  condition,  the  tenant  cannot  make  additions 
or  change  the  interior  arrangements  of  a  building  with- 
out the  consent  of  the  lessor,  and  if  he  erects  such  addi- 
tions and  makes  such  changes  with  his  consent,  they  are 
regarded  as  repairs  or  real  fixtures  and  cannot  i)e  removed 
by  the  teiumt. 

O'lJrien  v.  Kusterer,  27  Mich.,  289. 
Bucklaud  v.  Buttei field,  2  B.  &  B.,  54. 


— 2G  - 

JenkhiK-s  v.  CJethorey,  2  John  «fe  Hem.,  520. 
Stockwell  V.  Murks,  17  Me.,  4-j"). 
Powell  V.  McAshan,  28  Mo.,  70. 
Siiiidi  V.  Whitney,  147  Mass.,  479, 


To  show  liow  hroiid  the  rule  is  in  favor  of  the  tenant, 
we  ([iiote  tlio  following  language  from  a  recent  decision  of 
the  supreme  court  of  this  state: 

''Engines  and  boilers  erected  b}'^  the  tenant  of  a  min- 
ing lease  on  brick  and  stone  foundations,  and  l)olted  down 
solidly  to  the  ground,  and  walled  in  with  brick  arches; 
and  dwellings  erected  by  the  tenant  for  miners  to  dwell 
in,  standing  on  posts  or  dry  stone  walls, — when  such 
machinery  and  building  were  intended  to  be  merely 
accessory  to  the  mining  operations  under  the  lease,  and 
when  they  can  be  removed  without  material  disturbance 
to  the  land  are  trade  fixtures,  and  may  be  removed  at  or 
before  the  termination  of  the  lease." 

Conrad  v.  Saginaw  ^Mining  Co.,  55  Mich.,  249. 

Tiie  rule  in  other  states  is  similar,  the  tenant  may,  in 
short,  remove  all  improvements  made  by  him,  the  re- 
moval of  which  will  not  materially  injure  the  premises  or 
put  them  in  a  worse  plight  than  they  were  when  he  took 
l)Ossession. 

\V lilting  V.  Brastow,  4  Pick.,  810. 

WHKX    FIXTURES    ARE   TO    I!E    REMOVED   BY   TENANT. 

The  tenant  must  remove  the  fixtures  annexed  by  him 
before  or  at  the  expiration  of  his  lease,  and  if  he  surren- 
ders up  possession  of  the  premises  before  such  removal, 
It  will  l)e  construed  as  conclusive  proof  of  his  intent  to 


—27— 

inala'  such  li\hirr  ;i  itcniiaiicnl  acression  Id  tlic  frally. 
ami  lie  will  not  he  ixTiiiillcd  al'tci'wanl  to  n-iiiovc  I  hem, 
even  il"  the  owner  ol"  tlie  premises  shoiihl  sever  tlii-m  ami 
convert  tliem  into  personal  property. 

Stokce  V.  Upton,  40  Midi.,  5sl. 
Ericksoii  v.  Jones,  37  JMiiui.,  459. 


When  iixtiires  are  not  removed  by  tlie  tenant  diirini; 
his  term  and  he  takes  from  liis  landlord  a  new  lease  for  a 
Cnrther  term,  it  is  held  by  some  of  the  courts  that  the 
new  lease  is  virtually  a  new  lettin<i;  of  the  premises  in 
their  then  condition  and  that  if  there  is  no  reservation  of 
the  (ixlures  maile  by  the  tenant  he  abandons  them  and 
cannot  during  his  second  terra  remove  them. 

Marks  v.  Ryan,  63  Cal.,  107. 
AVutri.ss  V.  Nat'i  B'k,  124  Mass.,  571. 
Lough  ran  v.  Koss,  45  N.  Y.,  702. 
Hedderich  v.  Smith,  103  Ind.,  203. 


Other  courts  hold  that  the  new  lease  is  in  fact  an 
extension  of  the  first  term,  and  the  two  terms  are  to  be 
considered  as  one  holding,  so  far  as  the  tenant's  right  to 
the  iixtures  are  concerned,  and  therefore  the  time  within 
which  the  tenant  may  remove  the  fixtures  erected  by  him 
has  simply  been  extended  by  the  second  lease. 

Kerry.  Kingsbury,  39  Mich.,  150. 

Second  Nat'l  B'k  v.  Merrill  (Wis.),  34  N.  W.,  514. 

Davis  v.  Moss,  4S  Pa.  St.,  340. 


If,  however,  the  tenant  holds  over  with  tho  consi>nt  of 
the  landloi'd  and   his  lease  I hei'ebv  Ix'comes  a  lease  from 


—28— 

year  (o  year,  liis  ri<j;hL  to  remove  fixtures  annexed  during 
the  original  term  is  continued  during  tlie  time  he  holds. 

Weeton  v.  Woodcock,  7  M.  W.,  12. 
Allen  V.  Kennedy,  40  Ind.,  142. 

The  rule  tliat  the  tenant  must  remove  fixtures  during 
his  term  is  subject  to  this  exception,  that  if  the  term  is 
uncertain,  depending  upon  the  happening  of  an  uncertain 
or  contingent  event,  or  upon  the  will  of  the  lessor  as  in 
a  tenancy  at  will,  that  in  such  a  case,  where  the  term  is 
terminated  by  the  happening  of  such  contingent  event  or 
by  the  act  of  the  lessor,  the  tenant  will  have  a  reasonable 
time  thereafter  to  remove  his  fixtures. 

Antoni  v.  Belknap,  102  Mass.,  193. 
Haflick  V.  Stober,  11  Ohio  St.,  482. 


But  a  tenant  at  will,  not  having  an  assignable  estate, 
cannot  confer  upon  his  assignee  a  right  to  remove  fixtures. 
His  assignment  terminates  the  estate  and  is  an  abandon- 
ment of  the  fixtures  to  the  lessor. 
Dingly  v.  Buffum,  57  Me.,  381. 

It  is  only,  however,  such  fixtures  that  the  tenant  has 
rightfully  annexed  to  the  premises  that  he  can  remove, 
buildings,  additions  and  chattels  wrongfully  annexed  be- 
come accessions  to  the  realty  and  cannot  be  removed. 

Again,  when  at  the  execution  of  the  lease  there  was  an 
existing  mortgage  upon  the  premises,  the  rights  of  the 
tenant  are  subject  to  the  rights  of  the  mortgagee  and  the 
mortgagor  or  lessor  cannot  confer  upon  the  lessee  any 
greater  rights  than  he  himself  possessed,  and  if  the  tenant 
annexes   fixtures   to   the   leased    premises    and   does  not 


—29— 

remove  them  before  foreclosure,  he   thereby  looses   his 
right  U)  remove  them. 

Stafford  v.  Adair,  .57  Vt.,  63. 
Griffin  v.  Marine  Co.  5ii  111.,  130. 
Wight  V.  Gray,  73  Me.,  297. 
Pierce  v.  George,  108  Mass.,  78. 
Haflick  V.  Stober,  11  Ohio  St.,  482. 


In  case  the  tenant  does  not  remove  a  fixture  during 
his  term,  those  fixtures  which  would  have  been  real  fix- 
tures if  tliey  had  been  annexed  by  the  owner  of  the  soil 
become  such  when  abandoned.  AVere  they  during  the 
term  real  fixtures  or  were  they  chattel  fixtures?  In  other 
words  were  they  from  the  time  of  annexation  real  fixtures, 
a  part  of  the  realty,  or  did  they  continue  to  be  chattels  up 
to  the  moment  of  abandonment  and  by  that  act  become 
real  fixtures?  The  courts  in  the  difierent  states  have  not 
given  the  same  answer  to  these  questions.  Some  courts 
hold  them  to  be  real  fixtures. 

McNally  v.  Connelly,  70  Cal.,  3. 
Griffin  v.  Marine  Co.  &c.,  52  111.,  130. 

Others  that  they  are  chattel  fixtures  and  may  be 
levied  upon  as  such. 

Melhop  V.  Meinhart,  70  Iowa,  685. 
HefTner  v.  Lewis,  73  Pa.  St.,  302. 
Leiuar  v.  Mills,  4  Watts,  330. 

Tills  question  becomes  of  some  importance  between 
landlord  and  tenant  when  considered  with  reference  to 
the  proportion  wliich  each  should  pay  of  the  taxes  assessed 
upon  the  land  and  upon  the  improvements  made  by  the 
tenant.     It  is  well  settled,  that  in  the  absence  of  any 


—30— 

special  asi'oomeni,  (he  landlord  is  liable  for  all  the  taxes 
assessed  upon  the  land  and  the  tenant  for  those  assessed 
upon  the  improvements,  and  if  only  one  assessment  is 
made  and  the  taxes  are  paid  by  the  tenant,  he  can  charge 
the  landlord  with  his  equitable  proportion  only. 

Yeo  V.  Leaman,  2  Sir.,  1190. 
Hyde  v.  Hill,  3  Durnf  &  East,  211. 
Watson  V.  Home,  7  B.  &.  C,  285. 
Smith  V.  Humble,  lo  C.  B.,  321. 
Mavo  V.  Carrington,  19  Grat.,  74. 


When  the  statute  provides  that  property  shall  be 
taxed  as  real  and  i)ersonal  without  designating  what  shall 
be  considered  as  belonging  to  either  class,  then  of  course, 
the  character  of  any  particular  property  must  be  deter- 
mined correctly  by  the  rules  of  the  common  law,  for  real 
estate  cannot  be  taxed  as  personal  property  nor  personal 
property  as  real  estate. 

Richards  v.  Wapello  Co.,  48  la.,  507. 

It  is  competent  for  the  legislature,  however,  to  pro- 
vide that  any  particular  class  of  real  estate,  for  instance 
machinery,  shall  be  assessed  and  taxed  as  personal  prop- 
erty, and  a  building  as  real  estate. 

Johnson  v.  Roberts,  102  111.,  655. 
Milligan  v.  Drury,  130  Mass.,  428. 


When,  however,  a  building  is  personal  property  be- 
longing to  one,  and  the  land  upon  which  it  stands  belongs 
to  another,  it  should  be  listed  and  taxed  separately,  and  a 
tax  upon  the  land  in  such  a  case  would  not  be  a  lien  upon 
the  building. 


31 


Russell  V.  City  of  New  Haven,  ol  Conn.,  2-50. 
Parker  v.  Red  field,  10  Conn.,  490. 
Gllkerson  v.  Brown,  (51  111.,  486. 
Witherspoon  v.  Nichols.  27  Ark.,  332. 


The  rule  as  to  the  character  of  fixtures  between  tenant 
for  life  and  the  remainder  man  is  not  as  favorable  to  the 
tenant  as   that  between  landlord  and  tenant  for  years. 
The  reason  given  for  the  distinction  is  the  fact  that  the 
remainder  man  is  usually  near  of  kin  to  the  tenant  for 
life,  who  is,  as  a  rule,  tenant  by  courtesy,  or  tenant  in 
dower.    The  reason  applies  only  to  a  class  and  is  there- 
fore of  little  value.     Indeed  it  does  not  apply  to  all  of 
that  class.     There  are  many  tenants  in  dower  who  are  not 
of  kin  to  the  remainder  man,  widows  who  were  during 
marriage  step-mothers  to  the   heir-at-law,  second  wives. 
And  a  tenant  by  courtesy  may  have  children,  heirs  by  a 
former  marriage,  and  no  living  heirs  to  the  estate.     The 
true  reason  we  are  inclined  to  think  is  found  not  in  his 
relationship  to  the  heir  to  the  estate,  but  rather  in  his  in- 
terest in  the  estate  itself.     We  have  seen  that  the  princi- 
pal test  in  determining  the  character  of  a  fixture  is  the 
intent  with  which  it  was  annexed  to  the  realty.     It  is  to 
be  presumed  that  when  the  owner  of  realty  annexes  a 
fixture  which  it  is  to  his  pecuniary  interest  should  be  a 
permanent  addition  to  the  realty,  that  he  intends  to  make 
it  a  permanent  addition.    That  on  the  other  hand  it  is  not 
to  be  presumed  that  a  tenant  for  a  term  of  years  intends 
to  part  with  the  title  to  valuable  personal  property  for  the 
sole  benefit  of  the  landlord,  and  that  although  chattels 
may  be  injured  in  the  removal  and  be  less  valuable  after 
removal  than  in  position,  as  between  obtaining  a  little 
something  or  nothing,  it  is  to  be  presumed  that  the  tenant 
intended  when  the  annexation  was  made,  to  remove  them 


—32— 

and  save  for  himself  what  lie  could.  The  position  of  the 
tenant  for  life  is  different.  So  far  as  he  individually  is 
concerned,  his  estate  lasts  forever,  it  is  only  terminated 
l)y  liis  death.  He  can  have  no  personal  interest  in  the 
removal  of  fixtures  at  the  end  of  his  term.  The  only  in- 
terest he  can  possible  take  in  the  matter  is  the  welfare  of 
his  heirs.  Whatever  addition  he  makes  to  the  permanent 
betterment  of  the  estate  he  will  be  permitted  to  enjoy  all 
his  life  and  therefore  there  is  the  same  reason  for  findinti; 
that  he  intended  such  betterment  to  last  and  continue 
throuii;!!  his  term  as  there  is  in  case  of  the  owner  in  fee. 
And  if  for  life,  why  not  permanently? 

Cannon  v.  Hare,  1  Tenii.,  ch.  22. 
Lawton  v.  Lawton,  3  Atlc,  13. 
Dudly  V.  Ward,  1  Ambl.,  113. 


An  examination  of  Lawton  v.  Laioton,  and  Dudley/ 
V.  Ward,  shows  that  the  exception  to  the  general  rule  in 
those  cases  is  based  substantially  ui)on  the  princijile  that 
it  is  good  public  policy  to  encourage  trade  and  manu- 
facture by  giving  to  the  tenant  or  his  representative 
whatever  has  been  annexed  to  the  land  as  a  trade  fixture. 
It  is  evident,  however,  that  the  rule  is  not  as  liberal  as 
that  between  huidlord  and  tenant,  and  the  right  to  remove 
buildings  is  limited  to  buildings  erected  for  purposes  of 
trade  and  does  not  extend  to  other  buildings. 

Haflick  V.  Stober,  U  Ohio  St.,  482. 
McCullough  V.  Ivine,  13  Pa.  St.,  438. 
aiidden  v.  Bennett,  43  N.  H.,  30G. 


ORN.\MENTAL   AND   DOMESTIC   FIXTURES. 

When  the  tenant  for  life  annexes  fixtures  merely  for 


—33— 

(jnuuMcnt,  and  it  (Iocs  not  appear  that  he  intended  to 
make  them  a  part  of  the  freehold,  they  retain  the  (diarac- 
ter  of  personal  proi)erty,  but  when  such  lixtnres  are  an- 
nexed because  tliey  are  a  part  of  the  architectural  design 
of  the  house,  they  cannot  be  removed  after  such  annexa- 
tion by  the  tenant  or  his  representative. 

C'Et?i't?«<^urt  V.  (Jre-rory,  L.  R.  3  Ecj.,  381. 
Suedeker  v.  Warriiit?,  12  N.  Y.,  170. 
Rogers  v.  Crow,  49  Mo.,  91. 

The  tenant  for  life  cannot  remove  buildings  of  a 
permanent  character  which  are  erected  to  enhance  the  in- 
come of  the  estate  merely  and  are  evidently  designed  as 
permanent  additions  to  the  realty. 

Doak  V.  Wiswell,  38  Me.,  5G9. 
Gliddeu  v.  Bennett,  43  N.  H..  306. 
Clemence  v.  Sture,  1  R.  I.,  272. 


RAILROAD    ROLLING   STOCK. 

The  question  whether  rolling  stock  is  to  be  regarded 
as  real  estate  or  personal  property  has  frequently  been 
before  the  courts,  and  the  rule  is  far  from  being  uniform 
in  the  several  states.  In  Maryland,  Pennsylvania,  Geor- 
gia and  Kentucky  it  is  held  to  be  real  estate. 

Gue  V.  Tide  Water,  Canal  Co.,  24  How.,  257. 
Younguian  v.  Klinira  R.  R.,  65  Pa.  St.,  278. 
Mapon  R.  R.  v.  Parker,  9  Ga.,  377. 
PhillipH  V.  Winslow,  28  B.  Mon.,  431. 


In  New  York,  New  Hampshire,  New  Jersey  and  Ohio 
it  is  held  to  be  personal  property. 

Randall  v.  Elwell,  62  N.  Y.,  521. 


—34— 

Hoyle  V.  ritt.sbiug  11.  11.,  54  N.  Y.,  314. 
Williamson  v.  N.  J.  H.  II.  R.,  29  N.  J.  Eq.,  311. 
Hoston  R.  R.  v.  Gilmore,  37  N.  H.,  410. 
Coe  V.  Columbus  R.  R,,  10  Ohio  St.,  372. 


Ill  Arkansas,  Illinois,  Missouri,  Nebraska,  Texas  and 
West  Virginia  the  subject  is  governed  by  statute. 


LECTURE  IV. 


EASEMENTS. 


An  easement  is  a  liberty,  privilege  or  advantage  with- 
out profit  which  the  owner  of  one  tenement  has,  as  such 
owner,  in  a  neighboring  tenement,  existing  distinct  from 
the  ownership  of  the  soil. 

The  essential  qualities  of  easments  are  : 

1.  They  are  incorporeal, 

2.  They  are  imposed  upon  corporeal  property. 

3.  They  confer  no  right  to  a  participation  in  the 
profits  arising  from  such  property. 

4.  They  are  imposed  for  the  benefit  of  corporeal 
property. 

5.  There  must  be  two  distinct  tenements,  the  dom- 
inant, to  which  the  right  belongs  and  the  servient,  upon 
which  the  obligation  rests. 

Wolfe  V.  Frost,  4  Sand.  Ch.,  77-95. 
Huyck  V.  Andrews,  118  N.  Y.,  SI. 
Huyck  V.  Andrews,  3  L,  R.  A.,  789.  ^ 
Clark  V.  Glidden,  GO  Vt.,  ^02.  --- 


This  definition  does  not  include  the  rigiit  of  the  pub- 
lic in  a  highway,  also  called  an  easement,  and  easements 
attached  to  a  person,  called  easements  in  gross.      These 


—36— 

are  (lesi{;iiiito(l  easements  for  llie  want  of  a  better  term, 
but  they  are  not  true  easements.  Tliey  are  imposed  upon 
corporeal  property,  for  the  benefit  of  the  public  and  not 
for  tlie  use  and  advantage  of  the  owner  or  owners  of 
some  particuhir  estate.  , 

.  A  right  of  way  across  one  tenement,  for  the  use  and 
benefit  of  another  tenement,  is  an  example  of  an  ease- 
ment. 

EASEMENTS,  HOW  CREATED. 

Being  an  interest  in  land  an  easement  can  only  be 
acquired,  by  grant,  prescription  or  custom. 

"When  created  by  deed  it  may  be  created  by  an  ex- 
press reservation  in  the  deed  conveying  the  tenement. 
Thus  where  A  owning  two  estates  conveys  one  to  B,  he, 
may  reserve  a  right  of  way  across  such  estate  for  the 
benefit  of  the  estate  not  conveyed ;  or  it  may  be  created 
by  a  grant  in  the  deed,  as  where  A  and  B  own  separate 
tenements  A  may  grant  a  right  of  way  across  his  tene- 
ment for  the  benefit  of  B's  tenement. 

Cayle  v.  Parker,  97  N.  C,  271. 
2  Wash  R.  P.,  303. 


Whether  an  easement  is  created  or  not  by  the  ex- 
press terms  of  a  deed,  that  is  by  express  grant  or  by  an 
express  reservation,  depends  in  each  case  upon  the  con- 
struction which  the  court  gives  to  the  terms  used  in  the 
deed.  (Questions  of  this  kind  frequently  arise  but  they 
are  solved  in  each  instance  by  an  application  of  the  rules 
governing  the  construction  of  written  instruments,  by 
which  the  court  ascertains  the  purpose  and  intent  of  the 
parties  to  the  grant.    The  fact  that  the  question  involved 


is  the  creation  ol"  an  eii><enieii(  does  not    vary  or  inoilify 
those  rules. 

Hammoii,!  v.  Sohiff,  100  X.  C,  IGl. 


Easements  may,  however,  be  created  by  deed  when 
there  is  no  express  grant  and  no  express  reservation  ;  they 
may  be  granted  or  reserved  b}'^  i?npUcation. 

It  is  a  general  rule  that  when  a  person  grants  an 
estate  there  is  conveyed  with  the  estate  as  appurtenant 
thereto  any  right  necessary  to  the  enjoyment  of  the 
estate  granted.  For  instance  if  A  owns  lots  1  and  2,  and 
conveys  lot  2  to  B  and  there  is  no  public  or  private  way 
to  lot  2  except  over  lot  1  or  other  private  property,  the 
grant  conveys  to  B  a  right  of  way  over  lot  1,  called  in 
such  case  a  way  of  necessity. 

2  Wash.  R.  P.,  302. 

Boiul  V.  Willis,  84  Va.,  7!>6. 

s 

The  rule  is  broader  than  the  instance  given  would 
indicate.  When  a  tenement  is  granted  there  will  pass  as 
appurtenant  to  the  grant  any  easement  necessary  for  the 
use  and  enjoyment  of  the  property  in  the  condition  in 
which  it  was  granted,  unless  it  appears  from  the  terms  of 
the  grant  that  such  was  not  the  intention  of  the  parties. 
To  appropriate  a  term  of  the  jeweler,  the  grantor  sells 
the  jem,  the  estate,  with  its  setting.  When  land  has  been 
platted  for  instance  and  lots  are  sold  bounded  on  a  street 
shown  on  such  plat  and  such  street  and  the  connecting 
streets  add  to  the  value,  or  to  the  convenience  for  use,  of 
the  lot  sold,  there  is  an  implied  grant  to  tlie  vendee  of  an 
easement  in  such  street  and  the  connecting  streets. 

Bell  V.  Todd,  51  Mich.,  21. 
Smith  V.  Lock,  18  Mich.,  5(i. 
4 


-    88— 

Fox  V.  Siij^or  Ut'llriery,  I(»i»  Muss,  2!)2. 
liiirtlett  V,  Buiigor,  07  Me.,  4(i0. 
WiK'^riiis  V.  McCIeury,  4U  N.  V.,  .34(). 
liiimur  Co.  V.  ("KMneiitH,  4i»  Tex.,  347. 
Mead  V.  Anderson,  4(1  Kan.,  2(I.S. 
I'.ouiin;;  v.  I'.uitun,  101  N.  (J.,  17(j. 


If  tlic  street."^,  however,  do  not  add  to  the  vahie  or 
make  the  use  of  the  land  more  convenient  no  easement 
passes. 

IJ.'ll  V.  Todd,  ol  Mich  ,  21. 

Asiiiin,  when  the  owner  ol'  an  estate  or  ol"  two  or 
more  tenements,  has  so  arr;mi:;e(l  for  the  nse  and  enjoy- 
ment of  snch  estate  or  tenements,  tliat  one  portion  of  the 
estate  or  one  tenement,  derives  a  benefit  and  advantage 
from  another  portion  of  the  estati  or  another  tenement, 
of  a  permanent  open  and  continnous  character,  and  then 
sells  one  tenement  or  a  portion  of  the  estate,  the  vendee 
takes  the  part  sold  subject  to  the  benefits  which  openly 
and  visably  appear  to  belon*!;  to  it  at  the  time  of  the  sale. 

Clark  V.  Klekh,   117  111.,  643, 
Jones  V.  Jenkins,  34  Md.,  1.- — ' 
Diiiiklee  v.  Wilton  R.  R.,  24  N.  H.,  481*. 
Lan»])honi  v.  Milks,  21  N.  Y.,505. 
Cannon  v.  Boyd,  73  Pa.  St.,  17!t.      • 
Lennig  v.  Ocean  City  Asso.,  41  N.  J.,  Kcj.  OOfi. 
Morgan  v.  Meuth,  60  Mich.,  238.  "^ 
Howell  v.  Eates,  71  Tex.,  6!)0. 


The  foreiioinc:  rule  applies  to  implied  grants  of  ease- 
ments, not  to  implied  reservations  of  easements  in  deeds. 
There   are  courts,  however,  which   have  made  the  broad 


— :i9— 

stiiloinont  I liut  ;i  like  rule  prevails  u>;  l<>  iiiiplie.I  reserva 
tioiis  alliniiiii^  that  when  one  part  of  ati  estate  is  depen- 
dent, of  necessity,  lor  eii.joyinent  on  some  use  in  tin-  iiatiii'o 
of  an  easement  in  some  other  part,  and  the  owner  conveys 
either  part  without  any  express  ai;reement  on  that  sul)ject, 
that  in  that  case  the  dominant  estate,  whetlier  conveyed 
or  not,  carries  or  reserves  with  it,  an  easement  of  such 
necessary  use. 

Galloway  v.  Bonesteele,  Ho  Wis.,  7!t.-^ 

Dilliuaii  V.  Hoffiuaii.  38  Wis.,  559. 

Nicliolas  V.  CliHinl)er!aiii,  Cro.  Ja.s.,  121. 

Pyer  v.  Carter,  1  H.  &  N.,  910. 

McIMierson  v.  Aclver,  48  Aiu.  Rep.,  74!i. 

Goodale  v.  Godfrey,  53  Vt.,  21!).  + 

Crossley  v.  Lightowler,  L.  R.,  '2  Cliy.  App.,  478. 

Sutfleid  V.  Brown,  10  Jur.  N.  S.,  111. 

Leibert  v.  Levon,  .8  Barr.,  o8.i. 

Sanderlin  v.  Baxter,  7()  Va.,  2!>!».    "^ 


1-Jut  there  is  a  marked  dillerence  in  the  length  and 
breadth  of  the  rule  in  the  two  casas  owing  to  the  applica- 
tion and  enforcement  of  certain  other  rules.  It  is  a  fun- 
damental principle  that  tiie  grantor  will  not  be  permitted 
to  derogate  from  his  grant,  and  tiiat  tlie  grant  will  be  con- 
strued most  strongly  against  the  grantor.  These  two  prin- 
ciples so  far  modify  that  rule  that  when  it  is  applied  to 
reservation-^  all  implied  reservations  are  exclude.!,  except 
those  where  a  paramount  ne<-essity  make--'  an  exception 
necessary. 

Burns  v.  Gallajjher,  62  Md.,  462. 
Carbrey  v.  Willes,  7  Allen,  .■{<!4. 

The  general  rule  as  toimi)lied  grants  ami  reservations 
of  easements  is,  that  a  grant   by  the  owner  of  a  tiMiement 


—40— 

as  it  i--  tlicn  used  and  enjoyed,  will  pass  to  the  grantee  all 
those  apii  ireul  and  (M)ntiniioiis  easements  wiii(di  are 
necessary  I (»  the  rciisoMable  (Mijoyinent  of  the  property 
iriMiilcd.  and  which  at  the  tini"  of  the  ii;rant  have  been, 
and  arc  then  used  by  the  owner  of  the  entirety,  for  the 
henedl  of  the  part  i^ranted,  but  in  order  to  f:;ive  rise  to  a 
reservation  of  an  cxistinir;  easement  or  (jnasi  easement, 
where  the  deed  is  silent,  the  snrronndiiii^  (;ircnmstances 
and  the  situation  of  the  property  and  the  necessity  for  the 
existence  of  the  easement  must  be  such,  as  to  leave  no 
reason  to  doubt  that  the  parties  intended  that  the  ease- 
ment should  exist  and  the  property  be  used  and  enjoyed 
with  reference  to  the  continued  use  of  such  easement,  and 
that  in  all  other  cases,  if  the  grantor  intends  to  reserve 
any  right  over  the  tenement  granted,  he  mu^t  reserve  it 
expressly  in  the  grant. 

Wheeldon  v.  Burrows,  12  Cli.  Div.,  .'^1. 
Shoemaker  v.  .Shoemaker,  11  Abbott  N.  S.,  80. 
Burns  v.  Gallagher,  62  Md.,  4(>2. 
Mitchell  v.  Seipel,  53  Md.,  251. 
Mitchell  V.  Seipel,  3(5  Am.  Rep.,  404. 

When  there  are  simultaneous  sales  of  parts  of  the 
entire  property,  privately  or  at  auction,  or  under  a  decree 
or  judgment,  or  when  parts  of  the  estate  are  devised  to 
dilFcrent  persons,  or  there  his  been  a  partition  among 
parceners  or  tenants  in  common,  or  an  admeasurement  of 
dower,  and  in  all  similar  cases,  the  entire  transaction  is 
regarded  as  iiaving  taken  place  at  the  same  moment,  and 
there  is  an  implied  grant  to  each  under  the  first  rule  of  all 
easements  or  quasi  easements. 

Cox  v.  Matthews,  1  Vpntr.,  237. 
Rosewell  v.  Prior,  <!  Mod.,  11*5. 
Cromptou  v.  Riehardg,  I  Price,  '11. 


—41— 

Rrakely  v.  Sharp,  10  N.  J.  E<i.,  2(M>. 
(^ will  1:111  V.  Nuble,  75  ('hI.,  i")<l., 


Easements  are  sometimes  designated  as  continnons 
and  disfontinuous,  A  continnons  easement  is  one  that  is 
enjoyed  witliont  any  act  on  the  part  of  an  individual,  as  a 
water  course,  a  sewer,  and  the  like,  while  a  discontinuous 
easement  is  one  the  use  and  enjoyment  of  wiiich  de[)ends 
upon  the  act  of  an  individual,  such  as  a  rij^ht  of  way. 

.laiuiiica,  S:c.  v.  Chandler,  U  Allen,  15!»,  16-1.^ 
Lapiiiaii  V.  Milks.  21  N.  Y.,  505.  y. 
Morgan  v.  Meuth,  00  Mich.,  23S. 

It  is  held  tiiat  a  continuous  easement,  if  not  described, 
will  pass  with  the  dominent  estate  by  an  implied  j^rant. 
The  reason  lor  this  rule  is  found  in  the  supposition  that 
such  easements  must  have  been  known  to  the  vendor  and 
vendee  at  tlie  time  of  the  sale  which  must  have  been  made 
with  reference  to  liiem,  while  a  discontinuous  easement 
ni'ed  not  have  been  known  to  the  vendee  and  he  nee<l  not 
have  made  the  purchase  having;  that  advantaire  in  mind. 
The  reason  fails  and  with  it  the  rule  it  the  discontinuous 
easement  is  of  the  same  open  and  notorious  character  as  a 
continuous  easement. 

Watts  V.  Kelsom,  0  Ch.  App.  Cas.,  165. 
Lauyley  v.  Hainnioiul,  L.  R.,  3  Exeh.,  102. 
Glave  v.  Harding,  .{  H.  &  N.,  937. 
rhillips  v.  Phillips,  48  Pa.,  St.,  178. 
Cannon  v.  IJoyd,  7;{  Pa.  St.,  17!». 
Howell  V.  Estes,  71  Tex.,  0!M>. 

HY   PRESCRIPTION. 

Easements  may  i)e  acipiired  by  prescription.     As  the 


—42— 

lorin  iiiii»Ii(»s  llic  v\'^\\l  to  the  casciiKMil  rosls  upon  the  pre- 
suii)i)li<)n  tluit  there  IkkI  been  in  the  lirst  instance  a  <i;rant, 
the  evidence  of  which,  thinimh  lajise  oC  time,  has  been 
lost.  The  court  inters  I'rom  I  he  surrounding  circumstances 
and  the  acts  of  the  i)arties,  from  the  oi)en,  notorious,  ad- 
verse and  continuous  enjovnienl  ol"  the  rifrht  for  the 
re(piisite  period,  thai  th(;  riiilil,  originally,  was  created  by 
grant.  Anciently  a  person  claiming  an  easement  by  pre- 
scription was  required  to  show  that  he  or  his  grantors  had 
used  and  enjoj'ed  it  from  a  time  "  whereof  the  memory  of 
man  runneth  not  to  the  contrary."  Now,  however,  in  this 
country,  the  nature,  ([ualities  and  the  duration  of  the  use,* 
which  will  establish  an  easement  by  prescription,  are  pre- 
cisely the  same  as  are  necessary  to  give  title  to  land  by 
adverse  possession. 

Haag  V.  Delorme,  30  Wis.,  591,  598, 
Ward  V.  Warren,  82  N.  Y.,  ^fi').  ^ 

The  period  of  adverse  user  necessary  to  establish  the 
right  by  prescription  varies  in  the  different  states. 

When  the  right  is  once  established  by  prescription 
the  weight  of  authority  seems  to  be  that  the  presumption 
of  a  former  grant  is  conclusive  and  cannot  be  overthrown 
l)y  showing  that  in  fact  there  was  no  grant,  although  there 
are  authorities  to  the  contrary. 

Ward  v.  Warren,  82  N.  Y.,  265,  268.  -^ 
Garrett  v.  Jaclcsou,  20  Pa.  St.,  331. 

Cont7'a. 

See  cases  cited  by  Wasbburu  on  Easement,  p.  Ill,  113. 

RV   CUSTOM. 

No  true  easement  can  be  acquired  by  custom  l)ut  cer- 


♦ 


— 4:i- 

laiii  ri;:;lils  Imloii^iiijr  to  llic  iiili  iltituiits  ol"  ;i  purliciilar 
locality,  villaiic  or  mM';;lil)orlioo(l  may  We  thus  acquired. 
Tlio  niaiuier  iti  wliicli  a  ri^ht  is  a«'<iuiri'<l  by  custom  ami 
an  oasi'MUMit  hy  pr(>scrii)lioM.  is  praftically  the  same  hi 
prescription  a  i^raiil  i>  iiifcrrLMl  because  an  easement  l>e- 
lonj^s  to  an  individual  as  the  owner  or  oc(;ui)ant  of  a  |)ar 
ticular  tenement.  There  is  a  pLM-son  to  whom  the  <;rant 
could  have  been  made.  In  the  case  of  custom  there  is 
no  such  presumption.  The  persons  who  claim  a  riijht  ])y 
custom  are  incapal)le  of  takin<;  by  g;rant,  they  are  simply 
the  inhal)itants  of  a  i)articular  locality.  Hence  the  cus- 
tom relied  upon  to  establisii  the  rii:;!it,  must,  in  ord(M-  to 
be  a  i;ood  .custom,  be  reasonable.  In  the  case  of  pre- 
scription, where  a  former  grant  is  assumed  the  user 
determines  the  nature  an<l  extent  of  the  j;rant,  and 
whether  reasonable  or  unreasonable  is  of  no  moment, 
since  the  [)arties  were  at  liberty  to  bari^ain  with  their  own 
as  they  saw  proper.  But  in  the  case  of  custom  there  being 
no  grant  and  therefore  no  limit  fixed  l)y  the  parties 
alfected,  the  court  determines  the  limit  and  rejects  the 
custom,  altogether  if  unreasonable. 

Locliwood  V.  Wood,  (;  Q.  Ji.,  o()-(;4. 
Jones  V.  Robin,  Hi  Q.  li.,  (iiiO. 
Cortelyoii  v.  ViinBurnt,  li  Jolin.s,  3')7. 
Donell  V.  Clark,  19  Me.,  174. 
Nudil  V.  Hobb.s,  17  N.  H.,  524. 
Roger.s  v.  Brentoii,  10  il.  B.,  2(1-60. 
Fetcli  V.  Rawling.s,  2  H.  Bhick,  8!«. 
Sownby  v.  Coleman,  L.  R.,  2  Exch.,  f)o. 


There  are  easemenL  wliicii  a  municipal  C(»rp(>ralion 
can  hold  in  its  corporate  cai)acity,  and  when  that  is  the 
case,  such  corporation  can  ac(iiiir<>  an  e  iseinent  by  pre- 
scription. 


—44— 

Dt'iTfii'ld  V.  Conn  i{.  II.,  144  Muhs.,  .Si"), 
rcople  V.  Jackson,  7  Mieh.,  432. 


Tlie  distiiiclion  between  ri}>;lits  acquired  by  prescrip- 
tion and  custom  is  thus  stated  l)y  the  supreme  court  of 
New  IIanij)shire:  "It  those  rights  are  common  to  any 
manor,  district,  hundred,  parish  or  county,  as  a  local 
right,  they  are  holden  as  a  custom.  If  the  same  rights 
are  limited  to  an  individual  and  his  decendants,  to  a  body 
politic  and  its  successors,  or  one  attached  to  a  particular 
estate,  and  are  only  exercised  by  those  who  have  the 
ownership  oC  such  estate,  they  are  holden  as  a  prescrip- 
tion, which  prescription  is  either  personal  in  its  character 
or  is  a  prescription  in  a  que  estate.'''' 

Perley  v.  Langley,  7  N.  H.,  233.  "^ 


LECTURE  V. 


DOMINENT  AND   SERVIENT   ESTATES. 

The  estate  havin^^  the  easement  and  theiv])y  having 
a  certain  command  and  dominion,  over  another  estate, 
whereby  the  owner  of  the  estate  having  such  easement, 
can  use  for  certain  purposes  the  other  estate  for  the  benefit 
and  advantage  of  his"estate,  is  called  the  dominant  estate, 
and  the  estate  which  is  thus  obliged  to  serve  the  dominant 
estate  in  some  particular  for  its  use,  benefit  and  advan- 
tage, is  called  the  servient  estate.  Hence  it  comes,  that 
this  particular  class  of  rights  and  interests,  when  consid- 
ered with  reference  to  the  dominant  estate,  are  called 
easements,  and  when  considered  with  reference  to  the 
servient  estate  are  called  servitudes. 

There  are  certain  general  principles  applicable  alike 
to  all  easements  due  to  their  nature  and  the  purposes  for 
which  this  class  of  rights  are  created. 

1.  An  easement  proper  belongs  to  an  estate  and  not 
to  an  individual,  is  appurtenant  to  such  estate  and  passes 
by  a  grant  of  the  estate,  although  it  is  not  described  in  the 
grant,  and  the  grant  does  not  in  terms  convey  the  appur- 
tenances. 

Ross  v.  Thompson,  78  In d.,  00.  «^ 
Dority  v.  Duuninjj:,  7S  :\[e.,  381.  ^ 
De  Rochemeut  v.  Boston,  etc.,  04  N.  H.,  500. 


—40— 

•2.  If  tlio  (^iscmciil  is  liiiiitc(l  l)y  tlu-  express  terms  of 
lli(>  uraiil,  11(1  lircatcr  easciiH'iil  lliaii  llic  one  described 
passes,  alt  li(>iij;li  it  maybe  insiillicient  lor  the  full  and  per- 
fect enjoymeiil  of  the  dominant  estate  in  that  regard. 

For  instance,  if  A.,  the  owner  of  Whiteacre,  gives  B., 
the  owner  of  Blackacre,  a  right  of  way  eight  feet  in  width 
across  Whiteacre,  for  the  use  of  Blackacre  as  a  farm,  the 
width  is  lixed  by  the  grant  and  B.  cannot  claim  a  wider 
way,  although  it  nuiy  be  altogether  too  narrow  to  permit 
wagons  loaded  with  hay,  as  it  is  customary,  usual  and 
benelicial  to  load  them,  to  pass  and  repass.  B.  must  ac- 
commodate his  loads  to  the  way,  he  cannot  have  the  way 
widened  to  accommodate  his  loads. 

Atlviiis  V.  Board  man,  2  Mete,  457,  469. 

3.  If  the  grant  mentions  tiie  purpose  of  the  easement 
and  does  not  specifically  describe  and  limit  its  extent,  an 
easement  which  is  reasonably  sufficient  to  accomplish  the 
purpose  passes. 

For  instance,  in  the  case  last  supposed,  if  A's.  grant 
to  B.  had  been  a  right  of  way  across  Whiteacre  for  the 
use  of  Blackacre  as  a  farm,  witiiout  limiting  its  width,  a 
right  of  way  would  have  passed  of  such  a  width  as  to 
accommodate  wagons  loaded  in  the  ordinary  and  usual 
manner. 

Wheeler  v.  Wilder,  61  N,  H.,  2.  ^' 
Brown  v.  Stone,  10  Gray.,  61. 
Prescott  V.  White,  21  Pick.,  341.  ^ 

4.  The  owner  of  the  servient  estate  has  only  so  far 
abridged  the  use  and  enjoyment  of  that  estate  as  is  re- 
quisite and  necessary  to  enable  the  owner  of  the  dominent 
estate   to   have   a   reasonable  use  of   tlie  easement.     He 


-47— 

m;iy  iiiiilc*'  any  use  of  the  s-'i'viiMil  estate  which  does  ii(»t 
interfere  witli  the  reiisonable  use  ol"  the  easement.  Indeed, 
he  may  advance  one  st((p  further  than  that,  he  may  make 
any  use  of  the  servient  estate  which  does  not  make  the 
use  of  the  easement  more  inconvient  than  is  reasonable 
uii(h'r  the  circumstanctes.  The  easement  heh)n;;s  to  the 
(h)minant  estate  al)solutely,  bat  its  use  nevertheless  is 
simply  a  reasonable  use,  haviii;j;  rei^ard  to  the  rights  of 
the  servient  estate. 

Olcott  V.  Thompson,  o9  N.  11. ,  VA. 
Sutton  V.  (Jriill,  4ii  N.  J.,  Eq.,  213. 
Atkins  V.  liourdnmii,  2  Mete,  457.  H"^ 

5.  If,  however,  the  grant  spi'cihcally  describes  the 
easement,  the  easement  described  cannot  be  abridged  by 
the  owner  of  the  servient  estate,  although  such  abrigd- 
ment  would,  were  it  not  thus  specilically  described,  be 
deemed  reasonable  and  proper. 

Thus  if  a  right  of  way  is  granted,  as  it  is  then  estab- 
lished, such  right  of  way  cannot  be  changed,  modified  or 
interfered  with  without  the  consent  of  the  owner  of  the 
dominant  estate. 

Dickinson  v.  Wiiiliiey,  141  Ma-^s.,  414. 

Williams  v.  Clark,  140  Mass.  248. 

Patton  V.  Western  Carolina  Co.,  101  N.  C.+TtT^'    ^'^l 

().  If  there  is  nothing  in  the  grant  to  the  contrary, 
the  owner  of  the  easement  must  maintain  and  keep  it  in 
repair,  and  for  that  purpose  he  may  go  upon  the  servient 
estate  and  make  all  necessar\'^  and  reasonable  repairs  in 
the  proper  manner  and  at  the  proper  time.  The 'grant  of 
the  easement  is  also  a  grant  of  such  rights  as  are  incident 
and  necessarv  to  its  reasonable  u<e. 


Whoeler  v.  Wilder,  01  N.  11.,  2. 
Prt'scott  V.  VViute  21  Pick.,  341. 
Durfee  v.  Garvoy,  Ciil.,  (1H89). 


The  use  of  ;iii  ('mscimciiI  iiiiisl    he  confined  strictly  to 
the  purposes  for  which  it  was  granted. 

Noyes  V.  Hemphill,  o8  N.  H.,  r,30.-^ 
Kichanlsoii  v.  Pond,  lo  riray,  .'587.  > 
Loach  V.  HastingH,  147  Mass.,  -'Ao. 


8.  An  easement  is  appurtenant  to  every  part  of  the 
dominant  estate,  and  wiien  such  estate  is  divided  it  be- 
longs to  each  part,  provided  tlie  burden  is  not  increased. 

Hills  v.  Miller,  3  Paige  Ch.,  254.  "^ 

S.  C.  24  Am.,  Dec,  218  note. 

Watson  V.  Bioien,  1  S.  &  R.,  227. '' 


CLASSIFICATIONS   OF   EAS?:MENTS. 

The  most  common  easements  are: 

1.  Rights  of  way. 

2.  Rights  of  lateral  support  in  land. 

3.  Rights  incident  to  party  walls. 

4.  Rights  of  light  and  air. 

5.  Rights  incident  to  the  use  of  flowing  water. 

We  shall  consider  each  of  these  easements  separately 
and  ascertain  in  what  respect  the  use  and  enjoyment  of 
each  is  enlarged,  curtailed  or  modilied  by  the  general 
principles  already  given. 

RIOnTS    OF    WAV. 

Rights  of  way  are  either,  1,  Public;  or  2,  Private. 
Public  ways,  are  usually  designated,  wiien  located  in  the 


—  40— 

(•(tiiiit  tv,  piihlic  idails  or  liiirliwuys  1<»  distinguish  flu'rii 
rrom  priv.itc  romN;  wIumi  locatcil  in  a  city,  as  public 
streets,  toilislin^iiisli  IIkmh  (Votii  piiviite  streets  and  alleys. 
In  the  case  of  a  pulilic  way,  the  servient  estate  is  easily 
designated,  since  it  !-;  the  estate  upon  which  the  way  is 
locatcil,  hut  the  (Iniiijiiaiit  <'state  is  not  as  readily  des- 
crihefl.  Till'  use  (»l"  the  easement  l>el()iiy:s  to  the  public 
an<l  to  each  ineniher  of  liie  public,  includin;:;  the  owner  of 
the  servient  estate.  The  dominant  estate  may  l)e  re- 
«!;ardetl  as  any  estate,  which  the  corporation  holds  for  the 
use  and  ijenefit  of  the  public,  such  as  a  public  square,  any 
public  building,  and  the  like,  or  the  easement  may  be  re- 
garded as  held  in  gross  by  the  corporation.  The  distinc- 
tion is  of  no  practical  importance.  It  is  well  established, 
that  for  any  interference  with  the  use  of  a  public  way, 
atl'ecting  the  pnbli(t  at  larixe,  that  a  riirlit  of  action  belongs 
to  the  public  in  its  corporate  capacity,  and  equally  well 
established,  that  if  su<-h  interference  injuriously  allects  in 
a  special  and  exceptional  manner  any  particular  person, 
such  person  has  a  rii^ht  of  action  to  recover  the  special 
and  personal  damage  sullered  by  him. 

firigsiiy  V.  Cleur  Luke  Co.,  40  Cal.,  406.   -^ 
Taylor  v.  Boston  Water  Power,  lli  Gray,  41o,  4l!J. 
PliiladelpJiia  v.  Collins,  f,s  Pa.  St.,  Itt7,  122.  ^ 
PiMiiLsylvjiiiia  V.  Wheeling  liridj^e  Co.,  13  How.,olS,  oG4. 
Ro.ss  V.  TlioMipsoii,  7S   Iiid.,  !)(». 

In  a  pul)lic  way,  therefore,  each  member  of  the  com- 
munity has  a  twofold  interest.  He  is  interested  as  a 
member  of  the  public  to  the  same  e.\tent  as  every  other 
member,  and  for  violation  of  his  rights  as  such  member 
action'must  i)e  maintaine(l  l)y  the  corporation.  Hut  he  is 
also  interested  as  an  individual  separate  and  apart  from 
the  public.     Ill'  has  a  private  and  individual  right  to  use 


Iho  piihlic  way  aiil  for  an  iiitui  IcrcMici'  witli  or 'ItMual  of 
this  rii:li(  lit'  «'an  maiiifaiii  a  privni."  a<-lioi.  iMnvidfil  he 
ha><  siiU'cnMl  any  adiial  damauc 

A  imlilir  way  may  bo  created.  1.  liy  <lcf<l.  2.  liy 
(U'dicalioti.  ."J.  I)y  user  or  proscription.  \.  Hy  the  oxer- 
ciso  of  thi»  ritrht  ofoiniiioiil  domain. 

The  owner  may  hy  (h'c(l  to  the  proper  jtnhlic  cor[>o- 
ration  and  an  acceptanco  of  tho  ^rant  on  the  part  of  the 
corporation,  estahli>li  a  jtuhiic  way  across  Ids  hinds,  when 
empowered  so  to  (h>  hy  tho  statute. 

Post  V.  Pearsall,  22  Wend.,  424,  444. 
Post  V.  Pearsall,  21  Wend.,  111. 
Baker  v.  Johnston,  21  Midi.,  .Sl»,  340. 

To  create  a  public  way  l)y  dedication,  there  must  be 
such  acts  on  the  part  of  the  owner  of  tlie  hmd  over  which 
the  way  passes  as  to  clearly  indicate  an  int«'nlion  on  his 
part  to  estal)lish  the  way  and  to  dedicate  it  to  the  public 
use,  and  also  such  acts  on  the  i)art  of  tho  public  as  to 
clearly  indicate  an  acceptance  of  such  dedication  on  its 
part. 

Augell  on  Higlnvays,  i;  142. 

Dedication  of  public  ways  has  its  origin  in  the  com- 
mon law,  but  it  has  assumed  jxreat  importance  in  this 
country  within  very  recent  times.  8o  late  as  ls43  the 
supreme  court  ot'  Pennsylvania  i:ave  a  history  of  the  de- 
cisions upon  tho  subject,  and  declared  that  the  law  was 
not  well  dolined  ^overnin;;  this  <dass  of  cases.  / 

Gowan  v.  Philadelphia  Ex.  Co.,  o  W.  &  S.,  141./ 

At  common  law,  land  could  not  be  dedicated  to  the 


I)iil)li<-  iisi'  lor  any  otluT  |)iir|)()s«'  than  a  piiMic  way. 
riiltlic  parks,  coiiimons,  and  suoli  anala;r<)Ms  ri;;lits  wiTc 
licld  t(»  rest  in  liranl.  I!ul  it  i^  now  \\r\\  settled  in  lliis 
fOMiitry,  that  lan<l  can  Itr  dcdicalcd  to  tlif  public  for  uses 
and  purposes  oilier  than  hiirhways. 

Hiikcr  V.  Joliii>,(>ii,  i!l  Mich..  .H'.'. 
Hoaillcv  V.  Sail  l''iaiicisc(),  odCal.,  J'i'i. 


Since  a  public  way  not  only  confers  u  benefit  upon 
(he  public,  that  is  a  ri<:ht  of  use,  but  also  imposes  a  Ijur- 
den,  the  duty  of  inainlainin<i  and  keeping  such  a  way  in 
suitable  repair  at  the  piil)lic  expense, it  may  easily  happen 
that  some  particular  way  is  of  little  or  no  biMielit  to  tlu^ 
public  at  large,  and  that  it  has  been  laid  out  for  the  pur- 
pose of  enhanciiiLj  the  value  of  private  property.  In  such 
a  case  it  would  be  iinjiisf  to  compel  the  public  to  open 
and  maintain  such  a  way  at  the  public;  expense.  P'or 
that  reason  the  statutes  in  most,  if  not  all  the  states,  pro- 
vide specifically  what  -leps  the  proprietor  shall  lake  who 
desires  to  deilicate  lan<l  for  a  jiublic  way  and  in  what 
manner  such  dedication  on  his  part  shall  be  accepted  by 
the  public.  These  statutes  usually  have  particular  refer- 
ence to  village  plats,  and  additions  to  villages  and  cities. 
In  this  state  they  re(piire  that  the  proprietor  of  the  land 
plated  shall  make  a  plat  drawn  upon  a  certain  scale  which 
shall  -liow  the  Incalion  and  widlli  ol  all  -^l  r«'i'ls.  and  the 
location  and  area  of  all  public  grounds,  and  it  provides 
also,  that  such  plat  >liall  not  be  recorded  until  it  has  been 
approved  by  the  proper  local  body,  which,  in  cities,  is  the 
common  council,  and  in  villages  is  the  village  board. 

These  statutes  seldom  if  ever,  however,  provide  that 
a  public  way  shall  not  be  created  in  any  manner  dillerent 
from  that  pointed  out.     They  ilo  not  abrogate  the  comnu)n 


—52— 

law,  but  loavo  its  provision^  still  in  force.  Tlicy  simply 
croalo  a  new  method  of  dedication.  When  statutory  re- 
iiuircincnls  have  been  complied  with  it  is  called  a  statu- 
tory dedication. 

Detroit  v.  Detroit  A  M.  II.  II,  i!  Mich.,  17.;.     "* 

The  statutory  I'orniality  is  not,  necessary  to  constitute 
a  good  dedication.  Tiie  vif:il  princijde  which  ijives  life 
to  a  dedication,  is  an  intention  on  the  part  of  the  pro- 
prietor to  dedicate  land  to  the  public  for  a  definite  and 
particular  purpose,  and  an  intent  on  the  part  of  the  public 
to  accept  the  dedication  for  the  i)urpose  intended. 
Harding  v.  Jasper,  14  Ciil.,  '14;;. 

And  since  >uch  intention  on  the  part  of  the  public 
and  the  proprietor  is  inferred  from  the  acts  and  declara- 
tions of  the  parties  and  the  surrounding  circumstances, 
and  is  a  question  of  fact  for  the  jury  to  find,  public  ways 
have  been  dedicated  in  nearly  every  conceivable  manner. 

Fisk  V.  Havana,  S8  III.,  208. 
Morgan  v.  R.  R.  Co.,  00  U.  S.,  71(3. 

The  dedication  must  be  made  by  the  owner  of  the 
fee.  A  mortgagor  or  tenant  for  years  cannot  make  a 
dedication  for  a  longer  period  than  the  term  of  his  estate. 
The  mortgagee  or  owner  of  the  fee  is  not  bouml  by  such  an 
act. 

Kyle  v.  Logan,  87  111.,  •>4. 

The  dedication  need  not  be  accepted  hy  the  ptd)lic 
imnietiialclv,    l)ut     must    be    within    a    reasonable    time. 


— r)3— 

I  iilil  ;icc('|itcil  ilu!  (l(Mlic;it ion  is  iKtl  Wiiidiiiii  ii|i'Mi  llic  pro- 
prietor. Mild  I  lie  oiler  iii;iy  l)e  wit  luli-a  wii. 

Hriel  v.  Natch.'-,   Is   Miss.,   12.;. 
Wliite  V.  Siiiitli,  ;;7  Mich.,  li'tj.  ^ 
Bridges  v.  Wyckoir,  fi7  N.  Y.,  I.IO. 

If.  however,  a  proprietor  has  made  a  dedication  of 
huid  to  the  i)iihlic  on  his  part  which  niaterially  eidiances 
the  value  of  surronndini;  land.s  owned  hy  him,  and  then 
<ells  such  lands  with  reference  to  such  dedication,  he  can- 
not afterwards  withdraw  his  offer. 

Ahbott  V.  Mills,  3  Vt.,  521. 
Abbott  V,  Mills,  23  Am.  Dec,  222. 

There  must  in  every  case  be  an  acceptam-e  on  the 
part  of  the  public. 

White  V.  Smith,  ;{7  Mich.,  2'Jl. 

Niagara  Fulls  Bridge  Co.  v.  Bachmau,  6(i  N.  V.,  2(J1.>'C 

In  some  of  the  states  it  is  held  that  such  acceptance 
on  the  part  of  the  public  must  be  evidenced  by  some 
formal  act  oti  the  part  of  the  publi(r  authorities,  on  the 
«i;roun(l  tiiat  in  no  other  way  can  the  interests  of  the  i)ub- 
lic  be  [irotected,  since  any  other  inethoil  would  \)o  liable 
to  j^reat  abtise. 

Maybury  v.  Staiitlish,  "jO  Me.,  42. 

Com.  V.  Kelly,  S  (iratt.,  <i32. 

But  the  ;;eneral  rule  is,  liiat  when  the  dedication  is  of 
evident  a(lvantai:;e  to  the  public,  tnere  user  on  the  part  of 
the  i)ublic,  is  sullicient  evidence  (»f  an  acceptance. 

Guthrie  v.  New  liuveii,  :'A  Conn.,  3(t8. 
4 


—54— 

And  it,  may  he  staled  as  a  j:;eiieral  rule,  except  in 
those  states  where  a  formal  act  of  acceptance  is  requisite, 
that  any  act  on  the  part  of  the  public  treating  the  way  as 
a  pui)lic  way,  as  by  improving;  or  repairinj;,  will  be  re- 
iianled  as  sullicient  evidence  of  an  acceptance, 

Ross  V.  Thorn  psou,  TS  I  ml.,  90. 


LECTURE  VI. 


1!V    rSKK    OK    PRESCUII'TIOX. 

Strictly  sj)oakiiij;  lIuM'o  could  he  no  cslahlisliinciit  of 
a  highway  at  coimnon  law  by  i)re.scriptioii,  since  the  term 
implies  that  the  hij^iiway  was  orij:;inally  established  by 
grant,  and  as  we  have  seen  there  could  be  no  i^rant.  The 
proper  term  is  user.  When  there  has  been  an  open,  ad- 
verse and  continuous  user  by  the  public  for  the  statutory 
perio<l,  the  court  will  presume  that  there  was  originally 
not  a  grant  of  the  public  way,  but  a  dedication.  As  the 
result  is  precisely  the  same,  courts  have  sometimes  u-^ed 
the  term  prescription,  and  not  user. 

Odiorne  v.  Wade,  5  Pick.,  4'JI.  ^ 
Reed  v.  Northfleld,  l;}  Pick.,  U\.  ^ 
Miirtiii  V.  People,  U.5  III.,  .S42. 
Hurt  V.  Trustees,  15  Ind.,  ilid.*^ 
Jirownell  v.  Palmer,  liii  Conn.,  107.  ^ 


And  in  such  casi'  the  user  must  havi'  been  conlimMl 
during  the  entire  period  to  i)ractically  the  same  road  bed. 
And  this  rule  is  based  upon  the  theory  that  if  there  was  a 
dedication,  it  was  a  dedication  of  a  particular  way  which 
was  made  certain  by  the  act  of  the  parties  making  the 
dedication,  and  that  to  establish  such  a  way  by  user,  the 
user  must    indicate  clearlv  the  wav  originallv  deilicated  : 


nc)— 

liril  il  cannot  bo  prosiiined  tli  il  Iti'caiiso  a  person  is  vvill- 
ini:  to  (IcMliciito  a  i)arli(;iilar  way  lie  is  willinj;  that  snch 
way  should  he  a(laii(h)ne(l  and  tliat  the  jiuhlic  he  permitted 
to  (dioosc  any  way  th'sircd.  IJiil  when  there  has  been 
only  a  sliirht  deviation,  I  he  ri^ht  of  the  pul)li«-  will  not  be 
cUccted  thereby. 

liuinpus  V.  Miller,  4  Mich.,  \-V.K 

riiltlic  ways  created  by  user,  or  prescrij)tion,  or  by 
dedication,  rest  upon  precisely  the  same  foundation,  l^ut 
the  nature  and  kind  of  proof  required  to  establish  the  one 
dill'ers  entirely  from  that  which  is  necessary  to  establish 
the  other.  The  tirst  is  established  b}-^  proof  of  adverse 
user  by  the  public  for  the  statutory  period,  from  which 
the  fact  is  found  inferentially,  that  there  was  a  prior 
dedication  by  the  owner  of  the  soil,  the  evidence  of  which 
is  now  lost,  or  that  it  was  laid  out  by  the  proper  authori- 
ties and  such  records  are  now  lost.  The  second  is  estab- 
lished by  proof  showing  actual  dedication  made  by  the 
owner  and  acceptance  thereof  by  the  public. 

Commonwealth  v.  Coupe,  12.S  Mass.,  G:',,  G5.  ^ 
Jeniiinj^s  v.  Tisbury,  5  Gray.,  73.*^ 
Zigefoose  v.  Zigefoose,  G9  Iowa,  3!il. 


ESTABLISHMENT    OF    PUBLIC    WAYS    BY    THE    EXERCISE    OF   THE 
KIGHT   OF   EMINENT    DOMAIN. 

The  legislatures  of  all  the  states  jiave  enacted  laws 
specifying  the  manner  in  which  private  land  may  be  taken 
for  the  public  use  for  highways  an<l  streets.  These 
statutes  are  based  ui)on  the  jjower  of  the  government  to 
take  private  property  for  public  use  when  such  taking  is 
necessary  for  the  public  welfare,  called  tiie  right  of  em- 


—57— 

iiuMit   tloMKiiii.       riic   citi/cMi    is    fi;iiarik"tl    and     pndccictl 
ajjjainsl  a  uaiilon  cxcrcisi'  of  this  power  hy  the  r(iii»tilii 
tioii,  wliicli    provides   that    no  one  ''shall   Itc  deprived  of 
property  without   due   process  of  law;  nor   shall    private 
property  I )e  takfMi  lor  public  use  without  just  coinpensa- 
tion." 

5  Amdt.,  ir.  S.  Const. 

Sec.  :i-2,  An.  <i,  Mic'h.  (.'inist. 


Due  process  of  law  means,  the  law  ol"  the  land,  the 
common  law,  which  so  Car  as  judicial  process  and  deter- 
mination is  concernet],  re(|uires  that  Iho  person  -"hall  he 
duly  summoned  and  have  a  day  in  court,  and  that  he  shall 
not  be  deprived  of  his  pi-op(Mly  unlil  after  such  hearini:: 
and  judicial  determination. 

Sears  v.  Cotrell,  5  Midi.,  i50. 

Mutter  of  JoJin  Cherry  Streets,  lit  Wfiid  ,  6">!). 

Weinier  v.  IJunlmry,  'M)  Mich.,  liol. 

Taylor  v.  I'oitcr.  I  Hill,  14(i,  147. 

I'ar.sons  v.  Russell,  II  Mich.,  113. 

Ames  V.  Port  Huron,  »fec.,  11  Mich.,  130. 

Ray  City  v.  State  Treasurer,  23  Mich.  4n!». 

Hurtttbo  V.  California,  110  U.  S.,  ''ACk 


The  statutes  of  the  several  states  providiii'j;  for  the 
takin<;  of  private  property  for  pui)lic  use  dilFer  as  to  de- 
tails, but  agree  in  tiieir  main  features,  and  there  are  cer- 
tain general  requisites  which  all  ol  them  recogni/e. 

1.  The  property  to  be  taken  must  be  definitely  de- 
scribed, and  the  purpose  for  which  it  is  to  be  used  lor  the 
public,  .specitically  mentioned. 

2.  TIk'  owner  mu-^l  Itc  not  ilied  ol'  I  he  pi'oceedings  and 


—58- 

:;iv(Mi   ;m   opport unity   lo  sliou'   caii^t'   why   tlic   property 
slioiild  not  1)0  faUcii. 

.'I.  Tlic  person  (Pi-  ])orsons  who  are  aiif  liorizetl  to  ascer- 
tain and  del  ermine  whethei'  the  ])roperty  should  be  taken 
act  judicially,  they  must  not  be  interested,  and  their  find- 
iuirs  must  be  supported  by  competent  evidence,  or  if  they 
are  autliorized  to  act  upon  their  own  judgment,  the  pro- 
cee(linj:;s  must  show  that  they  have  informed  themselves 
and  exercised  their  jud;Lr;ment. 

4.  The  value  of  the  property  and  tiiejnst  compensa- 
tion to  wliich  the  owner  is  entitled  must  be  found. 

5.  As  a  general  rule,  ever}''  requirement  of  the 
statute  for  the  i)i'otection  of  the  owner  must  be  substan- 
tially complied  with,  and  any  deviation  from  a  literal 
compliance  which  might  work  the  owner  a  detriment,  will 
be  a  fatal  defect  and  avoid  the  proceedings. 

0.  It  must  appear  from  the  proceedings  tliat  it  has 
been  judicially  determined  that  the  public  interest  or 
safety  has  created  a  necessity  for  taking  the  property,  for 
the  right  of  eminent  domain,  is  based  solely  upon  the 
theory  that  the  nation,  or  the  people,  have  reserved  the 
right  to  reassert  title  to  any  property  for  the  necessary 
use  of  the  public,  l)ut  for  no  other  purpose, 

Beekman  v.  Saratoga  &  S.  R.  R.,  3  Page  Ch.,  4o. 
Beeknian  v.  Saratoga  &  S.  R.  R.,  22  Am.  Dec,  67r».  Note. 
Paul  v.  City  of  Detroit,  .32  Mich.,  108. 


TIIK  PURPOSES    I'OH  WHICH    PIUVATK    PKoPEllTV    MAY  HE  TAKEN. 

At  one  time  it  was  held  tiiat  private  property  could 
not  1)6  taken  for  a  public  way,  unless  the  proposed  way 
was  one  that  the  public  generally  would  use  for  the  pur- 
poses of  trade  and  travel  between  dillerent  parts  of  the 
country;  that  a  public  way  was  necessarily  one  that   led 


—59— 

from  some  niarkot  to  some  other  market,  or  from  one  pub 
lie  way  to  another,  and  that  a  nil  de  sar.  which   h'a<l   in 
one  tlirci'tion  nowhere,  was  a  private  way,  and  coiiM  not 
be  regarded  as  a  i>iiblic  way. 

Haldone  v.  Trustees,  Ac,  2:i  Barb.,  K).!.  ^ 


It  is  now  well  settled,  however,  that  the  term  pul)li(; 
use  does  not  mean  that  all  the  iidiabitants  of  the  state,  or 
county,  or  town,  or  city  even,  are  interested  personally  in 
such  use,  but  that  if  (piite  a  limited  number  of  people,  a 
very  limited  number  indeed,  compared  with  all  the  inhab- 
itants, require  the  establishment  of  a  public  way  that  that 
is  sutTicient  to  create  a  ])ublic  necessity.  Indeed,  it  has 
been  declared  that  the  pioneer  settler,  whose  cabin  marks 
the  farthest  point  to  which  civilization  has  penetrated  the 
wilderness,  is  entitltMl  to  have  a  public  way  established  up 
to  his  very  door. 

Sheaffv.  People,  ST  111.,  189. 
Bartlett  v.  Bangor,  07  Me.,  460. 
People  v.  Kingman,  24  N.  Y.,  ooO. 
Bateman  v.  Black,  14  E.  L.  &  Eq.,  (lit. 

At  common  law  the  ownership  of  the  soil  in  a  public 
way  was  in  the  owner  of  the  estate  over  which  it  passed. 
The  public  had  simply  a  right  of  user.  In  many  city 
charters,  however,  it  is  provided  that  the  corporation 
shall  own  the  fee  of  all  public  streets. 

Matter  of  John  ami  Cherry  Streets,  19  Wend..  ti.');i.  y^ 


Unless  there  is  a  special  statutory  i)rovision.  the 
owner  of  the  estate  retains  the  fee  of  the  soil  under  the 
highwav  and  niav  exercise  anv  and  all  rights  of  owner- 


— (10— 

ship  over  it  not,  inconsistent  with  (he  ri^ht  of  user  in  the 
piil)lic  which  is  limited  to  passinjj;  aloni;  it  for  hiisiness  or 
pleasnri'.  Tho  taking  of  the  hind  for  the  i)urposes  of 
a  liij^hway  is  Indd  to  ])e  also  a  taking  of  so  much  of  the 
soil,  or  other  material  found  within  its  limits,  as  can  be 
advantageously  used  in  inaking  and  keeping  in  repair  the 
road  bod. 

Pearley  v.  Clmiuller,  0  Mass.,  454.'' 
Goodtitle  v.  Allter,  1  JJurr,  13.3. 
Angell  on  Highways,  (2  Ed.),  ?  301. 
Jackson  v.  Hatliaway,  15  Jolnis.,  447. 


The  public  cannot  use  a  higliway  except  for  the 
natural  and  usual  purposes  of  a  liighway.  They  may  not 
pasture  cattle  in  it,  erect  private  or  public  booths  in  it, 
convert  it  into  a  race  track,  or  an  arena  for  public  sports. 

Stack  pole  v.  Healey,  10  Mass.,  33. '^ 
Cuiiiliaii  V.  Koiiaii,  S'i  Micb.,  .'iG2. 


Tiie  adjoining  owner  is  not  obliged  to  fence  against 
animals  upon  the  highways.  Still  since  the  public  have 
a  right  to  use  the  highway  to  drive  animals  from  one 
place  to  anotiier,  and  the  person  making  such  use  of  the 
way,  is  only  required  to  use  reasonable  care  and  diligence 
to  prevent  such  animals  from  doing  damage,  if  one  of 
them,  without  the  owner's  fault,  should  break  away  and 
do  damage  upon  adjacent  unenclosed  lands,  the  owner  of 
the  land  would  be  without  remedy, 

Hartford  v.  lirady,  114  Mass.,  4t»t;.   j 


The  owner  of  the  fee   may  use  the  highway  to  orna 
m  Mit  and  b-autify  his  premises,  and  for  that  purpose  may 


—01  — 

plant  sliadt'  tivos  iijtoii  I  In  lii;;li\vay,  provided  tliey  do  not 
interfere  with  piil)lic  travel,  and  such  trees  remain  the 
private  projuTty  of  such  owrjor,  and  should  the  proper 
authorities  decide  that  they  interfere  with  the  puhlic  user 
of  the  street,  they  cannot  he  cut  down  and  destroyed 
until  the  owner  lias  been  notified  of  such  decision  and  he 
has  been  i^iveu  a  reasoiuible  time  to  remove  them. 

(Mark  v.  Dasso  et  al.,  :'A  Mich.,  Sd.  ^ 


It  is  the  duty  of  the  public  authorities  to  keep  the 
highways  in  repair,  and  a  traveler  has  a  right  to  presume 
that  they  are  in  such  condition  that  he  may  pass  along 
them.  When  a  highway  is  made  temporarily'  impassible 
by  snow  drifts,  washouts,  or  other  obstructions,  a  traveler 
is  justified,  in  order  to  avoid  such  obstructions,  to  pass 
over  private  lands  if  necessary.  He  may  for  that  purpose 
tlirow  down  a  private  fence  and  cross  enclosed  fields.  lie 
must,  however,  use  that  care  which  a  rea'sona])le  and 
prudent  man  would  exercise  under  the  circumstances  to 
do  no  needles  damage. 

Campbell  v.  Race,  7  Cusli.,  408. 

S,  C.  .54  Am.  Dec.  72.S. 


The  reason  for  the  above  rule  is  based  upon  public 
necessity.  It  would  seem,  therelbre,  upon  principle,  that 
the  traveler  must  not  himself  create  the  necessity  by 
consulting  his  own  convenience,  and  that  if  the  existence 
of  the  ()l)st ruction  was  known  to  him,  and  he  might  have 
pursued  his  journey  by  taking  some  other  route,  although 
such  route  would  not  have  been  as  direct,  or  otherwise  as 
desirable,  he  would  not  be  justilied  i!i  going  outside  the 


—02— 

liiiilnvay  upon  j)rivato  land,  ami  thai   iiiidor  ^iicli  circiim- 
staiK'os  he  would  l»o  a  trespasser. 

Morey  v.  Fitzj^erald,  o7  Vt.,  4S7. 


'i'he  rule  in  the  adjudicated  oases  has  l)een  restricted 
to  sudden  tenii)oraryol)st  ructions.  There  seems,  however, 
no  reason  lor  such  restriction.  The  rij^lit  to  i^ass  upon 
adjoininj:;  land  is  based  upon  ttie  necessity  of  the  case. 
If  the  obstructions  have  existed  for  a  lonu;  time  it  would 
of  course  be  known  to  all  persons  havini:;  frequent  occa- 
sion to  use  that  way,  and  to  such  persons  the  necessity 
would  not  exist,  if  there  was  some  other  way  that  could 
be  taken.  But  if  a  traveler  from  a  distance,  wholly  i*j:no- 
rant  of  the  condition  of  the  way  and  without  having  re- 
ceive! any  warnini;'  from  any  source,  should  rome  to  a 
place  where  the  way  was  im[)assil)le,  for  any  reason,  and  it 
had  been  in  that  state  for  more  than  a  year,  wiiy  does  not 
the  necessity,  so  far  as  he  is  concerned  exists' 

Taylor  v.  Whitehead,  2  Doug.,  (Eng.),  745,  741*. 
Farnuni  v.  Piatt,  8  Pick.,  339.  .^ 
Leonard  v.  Leonard,  2  Allen,  543. 
Williams  v.  Sanford,  7  Barb.,  .309. 


If,  however,  it  is  the  duty  of  the  owner  of  the  dominent 
estate  to  keep  the  way  in  repair,  the  right  to  pass  upon 
private  property,  when  such  way  is  impassible  <loes  not 
exist,  for  the  reason  that  he  lias  merely  obtained  under 
the  grant  creating  the  way,  a  right  to  use  the  way  granted, 
and  it  follows,  that  if  lie  has  been  deprived  for  any  rea- 
son of  th(>  use  f)f  tiuil  particular  way,  lu'  has  no  more 
right   to  use  another  way  th.in   he   would  have,  if  he  had 


jiiircluisod  u  horse  Lliiit   should  hocomc  disaljled,  to  lake 
and  use  another  horse  owned  by  liis  vendor, 

Biilliird  V.  Hurrisori,  4  Muule  &  Sel.,  387,  'Ml.'^ 
Holmes  V.  StH'k'y,  lit  Weml..  .'>{)!. 

There  is  a  cla-^s  of  ways,  like  alleys  in  a  ciiy,  which 
are  (jua.'ii  puhlic.  The  puiilic  have  an  interest  in  them, 
since  they  enable  the  occupants  of  adjoiniiifz;  premises  to 
handle  goods  and  merchandise  without  impedin;:;  the  use 
of  the  street  in  front  of  such  premises.  On  account  of  that 
and  other  henelits,  their  creation  under  the  right  of  emi- 
nent domain  has  been  sustained.  I5ut  Ihey  are  principally 
beneficial  to  adjoining  i)roperty  owners,  and  therefore, 
when  property  is  taken  for  an  alley,  the  statutes  usually 
provide  that  the  compensation  for  such  property  ami  the 
cost  of  maintaining  the  alley,  shall  ))e  borne  exclusively  by 
the  ])rivate  property  benelited, 

Paul  V.  Detroit,  :V1  Mich.,  108. 


LECTURE  VII. 


PRIVATE  -SVAYS. 


I'riviite  ways  are  created:  1.  By  an  express  or  implied 
grant,  or  by  an  express  or  implied  reservation;  2.  By 
prescription.  We  have  treated  of  these  subjects  in  treat- 
ing of  easements  generally. 

BY   GRANT    AND   RESERVATION. 

As  illustrating  the  rule  that  an  easement  is  created 
by  an  implied  grant,  see  ; 

Cihak  V.  Klekr,  117  111.,  G43.  ^ 
and  by  an  implied  reservation. 

Gallaway  v.  Bouesteel,  65  Wis.,  ~9.^ 


BY   PRESCRIPTION.! 

It  is  a  general  rule  that  there  can  be  no  adverse  user 
when  the  acts  of  user  were  done  under  the  authority  of  the 
owner  of  the  servient  estate.  It  does  not  follow,  however, 
that,  since  the  user  commenced  uuder  authority,  it  must 
necessarily  have  continued  under  the  same  authority.  It 
has  been  iield  that  user  under  a  license  may  be  converted 
aud  changed  into  adverse  user,  and  that  if  such  adverse 


—05— 

usiT  coiitiiiiu's  the  ivqiiisite  period.  :im  (•.i-ciiiciil    may  he 

thus  acquired  by  proscription. 

Eckerman  v,  Crippiu,  .3!»  Hun.,  Hit. 
House  V.  Montgomery,  10  Mo.,  Ajt]).,  170. 


The  user  must  he  strictly  adverse,  contiiuutus  and  not 
under  a  license,  during  the  entire  statutory  period. 

Eckerman  v.  Crippin,  '>!•  Hun.,  419. 
Cronkliite  v.  Cronkliite,  !»4  N.  Y.,  323. 
Wiseman  v.  LucksitiKer,  H4  N.  Y.,  .31. 
Nichols  V.  \Ventworth,  loO  N.  Y.,  4-"). 


A  right  of  way  can  be  acquired  by  prescription  in 
another  rijiiht  of  way.  Thus,  where  tlie  owner  of  A,  the 
doniinent  estate,  has  a  rijj;lit  of  way  across  B,  the  servient 
estate,  the  owner  of  ( -,  an  estate  abutting  on  such  right  of 
way,  can,  l)y  prescript i(»n,  make  sucii  way  a  way  appurte- 
nant to  the  estate  C\  althoui^h  tiie  user  estal>lishing  such 
prescription  was  of  tiie  same  character  as  that  for  which 
the  way  was  established,  and  in  no  manner  interfered 
with  the  use  of  the  way  by  the  original  grantee. 

Webster  v.  Lowell,  142  Mass.,  324. 
Fitcbburg  R.  R.  v.  Page,  131  Mass.,  391. 


A  right  of  way  cannot  be  acquired  by  prescription 
over  an  estate  which  cannot  be  alienated. 

Wootiworth  V.  Paymand,  ol  Conn.,  70.  %-- 


When  a  private  way  is  a|)purtenant  to  an  estate,  the 
point  or  place  from  \\hi<'h  the  owner  of  the  estate  is  to 
start,  in  order  to   use  the  way,  is  called  the  termhiua  a 


— C6— 

tjaoi  ''■"'  •''*'  p<»'iil  vvln'ic  llu-  \v;iy  cuds,  i>  callccl  the  tcr- 
viinus  ad  quern.  It  is  one  ol'  the  cssciitial  (|iiulities  of  a 
private  way  tlial  the  owner  has  an  irrevocalile  rif^ht  to 
start  Iroin  the  terminus  a  quo  and  to  go  over  the  way  to 
the  iermimis  ad  qttem,  not  a  mere  permission  or  license 
so  to  do. 

2  Blk.  Com.,  :55 

3  Kent.  Com.,  420. 


When  a  way  is  incident  to  an  estate,  one  terminus 
being  thereon,  and  contributes  to  the  lull  enjoyment  of 
the  estate,  it  is  said  to  be  ai>pendaMt  or  appurtenant  to  the 
land  and  passes  with  a  grant  of  the  land  as  an  appurte- 
nant without  being  expressly  named.  It  has  been  held  to 
pass  with  a  grant  that  did  not  in  terms  convey  appurte- 
nances. 

3  Kent.  Com.,  420. 

Garrison  v.  Rudd.,  19  111.,  5o8. 

Ackroyd  v.  Smith,  70  E.  C.  L.,  164. 


When  a  right  of  way  is  appendant  to  land,  it  is  ap- 
purtenant to  every  part  of  it.  If  such  land  be  subdivided 
into  several  i^arcels  and  the  several  i)arcels  sold  to  as 
many  dilferent  qrantees,  such  way  attaches  to  each  parcel 
and  each  owner  may  use  and  enjoy  it. 

Watson  V.  Brown,  1  S.  &  R.,  227. 


A  right  of  way  may  be  held  by  an  individual  and  not 
be  appurtenant  to  any  estate.  Such  a  way  is  said  to  be  a 
way  in  gross.  It  is  not  a  true  easement,  but  rather  a 
license  coupled  with  an  interest  and  irrevocable. 


—67— 

A  way  ;i[>i)urlt'ii;iiil  to  I.iikI  (miimoI  l>e  severed  there- 
from and  coverted  into  a  way  in  gross,  neither  can  a  way 
in  ^ross  he  made  appurtenant  to  an  estate, 
(furrison  v.  Itucld,  1!»  II1.,ooM. 

WAYS   OH  NECESSITY. 

There  is  one  das^  of  \v:iy>  that  deserve  particular 
mention,  termed  ways  ol  necessity.  They  are  always 
created  by  an  implied  grant  or  an  implied  reservation  in 
a  grant.  For  instance,  if  A  is  the  owner  of  lots  X  and  Y 
and  they  are  so  situated  tliat  Y  cannot  he  used  or  enjoyed 
without  the  use  of  a  way  over  X,  and  A  sells  Y  and  re- 
tains X,  the  vendee  takes  a  right  of  way  of  necessity  over 
X.  The  express  grant  of  Y  conveys  by  implication  any 
right  incident  thereto  necessary  for  its  reasonable  enjoy- 
ment. On  the  other  hand,  if  X  is  sold  and  Y  retained 
there  is  an  imi)lied  reservation  of  a  way  ol  necessity, 
based  on  the  presumption  that  the  purchase  was  made 
with  the  understanding  that  this  necessary  reservation 
was  made. 

Perntun  v.  Wead,  li  Mass.,  203. 

Wiswell  v,  Mhnjijue,  57  Vt.,  61(3. 

Ponifret  v.  Ricroft,  1  Saud.,  321. 

Alley  V.  Carlton,  J'.*  Tex.,  74.-^ 

Since  a  way  of  necessity  can  alone  be  created  by  an 
implied  grant,  or  implied  reservation  in  a  grant,  it  follows 
that  botii  the  dominant  and  servient  estate  must  have 
been  once  owned,  at  the  same  time  by  the  same  person. 
There  is  never  a  way  of  necessity  over  a  stranger's  land. 

Wiswell  v.  Minogue,  57  Vt.,  016. 
Tracy  v.  Atberton,  35  Vt.,  52. 
Woodwortli  V.  Raymond,  51  Couu.,  7U. 


—08— 

A  way  of  iiocessiLy  caii  only  arise  whiMi  i\ievv.  is  a  pci- 
luniiont  necessity,  a  real,  actual  ;ni<l  positive  necessity, 
wliitli  aiiioiiMts,  mu^cr  (Ih-  circmnslunces,  to  an  absolute 
necessity.  Mere  inconvenience  is  not  siillicient.  There 
must  be  no  other  way  practicable: 

Carey  v.  Rae,  5S  Ciil.,  l">i).*^  y 

McDonald  v.  Lindall,.'{  Uawie.,  492.  ^ 
Turiibull  V.  Rivers,  3McCor<l,  131. 
Cooper  V.  Man  pin,  6  Mo.,  6LM. 
Anderson  v.  Budianan,  S  Ind.,  1.32. 
Ogdeu  V.  Grove,  .'{8  Pa.  St.,  487. 
Gayetty  v.  Bethune,  14  Mass.,  49. 
Trask  v.  Paterson,  29  Me.,  499, 
Nichols  V.  Luce,  24  Pick.,  102. 
Burns  v.  Gallagher,  (32  Md.,  462. 
P>ancies's  Appeal,  96  Pa.  St.,  200. 
Galloway  v.  Bonesteel,  65  Wis.,  79. 


A  way  of  necessity  continues  while  the  necessity  re- 
mains, but  when  the  necessity  is  removed  the  right  of  way 
is  thereby  extinguished. 

Carey  v.  Rae,  ')8  Cal.,  159. 

Hancock  v.  Weutworth,  5  Mete,  446. 

Abbott  v.  Stewartstowu,  47  N.  H.,  228. 

N.  Y.  Ins.  &  Trust  Co.  v.  Milnor,  1  Barb.  Ch.,  353. 

Linkenlioker  v.  ( Jraybill,  Sn  Va.,  S.'io. 


When  a  way  of  necessity  is  created,  the  owner  of  the 
servient  estate  has  the  right  in  the  first  instance  to  locate 
the  way,  and  if  he  nei:lect  so  to  do,  the  owner  of  the  domi- 
nant estate  may  make  llic  location.  In  either  case  the 
interest  of  both  owners  must  l>e  considered  and  the  loca- 


—09— 

lion  must  he  a  rcasoiialjlc  kih'.    (  )I"  coiirsc  tlio  parlies  may 
a;;iTr  miiliially  upiiM  a  location. 

Smith  V.  Lff.  11  Ciniy,  47.{,  480. 
Powt'is  V.  Harlow,  •').'{  Mich.,  507. 
Hmiiill  V.  lloljhiiis,  77  Me.,  l!»:{. 


In  this  lattor  case  there  is  a  plain  statement  of  the 
law  based  upon  a  sa<l  and  al)snrdly  contused  statement  ot" 
fact. 

There  are  several  kinds  of  jjrivate  ways,  l)nt  Hie  rii^lit 
to  use  and  enjoy  either  one  of  them  is  jioverned  by  th(> 
same  principles  that  apply  to  the  use  and  enjoyment  of 
the  others.  They  liave,  however,  for  the  sake  of  conve- 
nience in  the  matter  of  description,  l)een  divided  into  four 
classes,  viz.:  Foot  ways,  foot  and  horse  ways,  foot,  horse 
and  carriage  ways,  and  drift  ways.  These  names,  with 
perhaps  the  e.\cei)lion  of  drift  way,  sulliciently  indicate 
the  character  of  these  several  ways.  A  drift  way  is  a  way 
for  drivinji  cattle,  and  the  f^rant  of  such  a  way  has  been 
held  to  include  a  right  to  drive  teams. 
Smith  V.  I.add,  11  Me.,  .{14,  320. 


The  manner  and  extent  of  the  use  of  a  private  way  is 
designated  and  limited  by  the  grant.  The  owner  of  a  foot 
way,  may  not  lead  a  horse,  much  less  drive  a  team  over 
it.  In  short,  the  owner  is  restricte(l  to  the  use  of  >uch  a 
way  as  has  been  granted. 

Brunton  v.  Hall,  1  Q.  B.,  702.  *" 

McDonald  v.  Lindall,  3  Uawle,  402. 


In  the  use  of  the  way  the  convenience  of  the  owner 

of  the  dominant  estate  is  nol  alone  to  be  consulted.     The 
6 


-70— 


owner  of  the  servient  eslule  has  a  rij:;lit  to  the  reasonalde 
use  ai»(l  enjoyment  of  his  estate,  and  in  snch  reasonable 
use  he  may  inlerfevt^-tomevvhal  with  the  ease  and  comfort 
with  which  the  (tWiiyiV)!'  thc,(h»Miinant  estate  may  use  the 
way.  As  ;tn  illii^iraDOniVt' this  princiijlo,  it  has  been  hehl 
that,  when  the  fira\ji  isVs'X'nt  upon  the  subject,  the  j^ranlor 
may  maintain  ijai^ / a\y*oss  a  private  way  which  the 
j;rant<je  yiMst  opiviy^and  (dose  when  u-inu  the  way. 


FcndHT,  47  N.  H.,  :{()1,  :wi. 
Al(l«/rs<)n,  '2-2  Iowa,  1»!0,  Dili, 
V.  Jarret,  (i'.t  Wis.,  Ol.;. 


0-. 


Rut  when  a  way  has  been  hiid  out  and  constructed 
and  its  character  fixed  and  determined,  at  the  time  the 
grant  is  made,  and  the  terms  of  the  grant  clearly  indicate 
that  the  particuhir  way,  as  then  established  and  main- 
tained, has  been  conveyed,  the  grantor  will  not  be  per- 
mitted to  derogate  from  his  grant  l)y  making  any  change 
in  the  way  to  the  deti'iment  of  the  grantee. 

Welcli  V.  Wilcox,  101  Mass.,  102,  163.      "^ 
Dickersoii  v.  Wliituey,  141  Mass.,  414. 
Nasii  V.  New  Knj;.  Ins.  Co.,  127  Mass.,  91. 


The  use  of  the  wa^'  is  restricted  to  the  purpose  for 
which  it  was  granted.*  If  tlie  way  granted  is  one  to  go  to 
a  particular  jdace  for  a  particle  purpose,  the  grantee  can- 
not use  the  way  to  go  to  any  other  place  than  the  one 
designated,  nor  to  that  particular  place  except  for  the 
purpose  specilied.  And  the  reason  for  this  stringent  rule 
is,  that  the  grantee  niav  not   increase  the  burden  of  the 


—71  — 

oasomoiit  upon  fhc  servient   c^l.ilc  Iu'VoikI   tli.ii    iiii|».)s,..| 
Ity  the  i^iaiii . 

Diivciijiort  V.  L:uiis(ui,  lil  I'ick.,  7:^ 


Frciii'li  V.  Marstiii,  I  Fustfr.  Uo,  \\:>. 


^ 


It  has  ht'cii  hchl,  lh;tt  wIhtc  the  piir|)()><('  ;iih1  (thject 
lor  which  the  way  was  civaleil  have  ilisappeaivd,  the  way 
ceases;  that,  lor  instance,  a  rifjht  of  way  lo  an  open  sfjacc 
wouhl  cease  when  the  space  was  tilled  with  a  huildini;. 

Heniiiiig  v.  Burnett,  H  Exch.,  IST. 
Alifii  V.  Goiuiiu',  11  A.  ifc  E.,  7.'i!(. 


lint  thechaiific  in  the  situation  and  tlie  surrondiniis 
iniisl  he  of  such  a  nature  as  to  permanent!}'  destroy  the 
ori«;inal  purpo-i'  l«>r  which  the  way  was  established.  Wliat 
amounts  to  a  temporary  suspension  of  the  use  of  the  way 
is  not  sullicient.  Thus  a  private  riiiht  of  way  created  for 
the  use  and  honelit  of  certain  buildiuf^s  is  not  destroyed 
Ity  a  loss  (tf  the  l)Mililini:;s  hy  liri*. 

Chew  V.  Cook,  .!!)  N.  J.,  p:(|.,  .{9(5. 
Banga  v.  Parker,  71  Me.,  458. 


Where  a  rii^ht  of  way  is  .iijpurtenant  (o  an  estate,  the 
family  t)f  the  owner  may  use  such  way. 

I'owt'i-^  V.  Iliirlow,  W,\  Midi.,  .5(17. 


When  a  rii,dil  of  way  is  •granted  I'or  a  particul.ir  jtur- 
|)ose  mentioned  in  the  deed,  or  is  (h'si^nated  as  a  partic- 
ular kind  of  way,  hut  the  w.iy  is  not  described  by  nn«tes 
and  Iciun  Is,and  is  not  .iftually  in  existence  at  the  lime  of 


—72— 

j^ranf,  a  way  reasonably  sullicient  for  the  use  and  purposes 
iudicatod  passes.  If  it  is  dcscrihed  as  a  foot  way,  it  con- 
voys a  way  of  roasonal)le  width  and  hciirht  to  acconiinodate 
foot  ])assenjj;cM-s  carryinjr;  the  ordinary  l)urdens  of  foot 
l)ass(Miii;('is.  If  it  is  described  as  a  foot  and  carriage  way 
in  the  (U'ed,  there  is  conveyed  a  way  of  sullicient  width 
and  height  to  accommodate  carriages  of  the  largest  size  in 
common  use  when  loaded  as  wagons  are  ordinarily  loaded 
with  produce  or  merchandise. 

Atkins  V.  Boarduian,  2  Mete,  457. 


LECTURE  VIII. 


EXTINCJUISHMENT   OF   HIOIIT   OK    WAY. 

A  rij;hl  ol"  way  may  be  extinguished  by: 

1.     A  release.     2.     By  non-user  or  abandonment.    .'>. 

By  unity  of  possession.     4.     By  the  exercise  of  the  right 

of  eminent  domain. 

I.    hkleasp:. 

Since  a  riirht  of  way  may  be  created  by  grant  it  may 
be,  as  a  matter  of  course,  by  a  like  formality,  regranted, 
released  and  surrendered  up  to  the  servient  estate. 

II.      NON-I'SKK   OR    AI!ANI>oN.MKNT. 

User  being  sullicient  to  establish  a  right  of  way  mere 
non-user  for  the  same  period  is  sufficient  to  raise  a  pre- 
sumption in  law  of  a  release,  but  since  the  right  can  only 
be  established  by  adverse  user,  when  it  is  so  established, 
it  must  be  shown  that  the  non-user  is  owing  to  some  ad- 
verse act  of  thi'  owner  of  the  servient  estate  in  order  to 
bar  the  right. 

lU'iiiiislee  V.  Fiencli,  TCoiiii.,  lliS. 
Kmcrson  v.  Wiley,  1(»  Pick.,  31(i,  31(>. 
Eddy  V.  VhiiHii,  14<)  Ma.ss.,   171.*^ 
Wanl  V.  Ward,  11  K.  ('.  L.,  11.;. 


—74— 

1 1.  Iin\v('\  cr,  t  lie  rii;lit  of  way  lias  hccii  ai(|iiir('(l  l)y 
(It'fil,  MH'ic  mm  iisci"  alone,  and  Ity  ilM-lf.  I'<»r  any  length 
of  time,  will  not  impair  or  (Ideat  llic  ri;;lit.  In  that  case 
the  noil-user  must  be  shown  to  have  been  the  result  of  a 
use  of  the  servient  estate  Ijy  its  owner,  adverse  to  tlie 
exercise  of  the  riiilit  of  way. 

Wit,'Kin.s  V.  McCleary,  40  N.  Y.,  34G. 
Siiell  V.  Levitt,  30  Hun.,  227./ 
Siiell  V.  Levitt,  110  N.  Y.,  oi».5. 
Siiell  V.  Levitt,  1  L.  R.  A.,  414. 


The  fact  as  to  whether  an  easement  lias  or  has  not 
been  abandoned  depends  frequently  upon  the  intention  of 
the  grantee. 

Poison  V.  Ingram,  22  S.  C,  ")4I. 

Cro89ley  v.  Lightowler,  L,  R.,  2  Ch.,  Api).,  478. 


There  is  sometimes  an  abandonment  of  an  easement 
by  an  estoppel  en  pais.  For  instance,  if  the  owner  of  the 
dominant  estate  authorizes  the  owner  of  the  servient 
estate  to  erect  permanent  and  valualde  improvements 
upon  the  servient  estate,  which  make  the  further  exercise 
of  the  ri;i;ht  of  way  impossible,  he  will  be  held  to  have 
abandoned  the  easement  and  will  be  estoppeil  from  assert- 
ine;  anv  riirht  thereto. 


Dyer  v.  Sandford,  9  Mete,  395.    ^ 


When  a  rii^ht  of  way  is  owned  by  several  persons  in 
common  it  may  be  abandoned  by  either  one  as  to  himself, 
and  if  so  abandoned  he  cannot  afterward^  maintain  a  riirht 


—75— 

ol"  action  aj^aiiist  the  others  or  either  ol"  t  liem,  lor  oljsl  riirt- 
iii;;  such  way. 

Steere  v.  Timiriy,  V.i  K.  1.,  otiS.    -^ 
Bellas  V.  ranluf,  Pa.  St.,  (ISSK). 


III.      TNITV    OF   TITr.K. 

Unity  of  tlMe  ami  pos.session  ol"  the  doininanl  and 
servient  estate  in  the  same  person,  necessarily  e.\tin- 
<;uishes  an  easement.  No  person  can  he  said  to  have  a 
private  right  ol'  way  over  any  part  ol"  his  own  land  since 
he  has  an  absolnte  ri«;ht  to  use  any  and  every  part  of  it  as 
he  may  desire.  But  in  order  that  such  unity  of  title  and 
possession  ?nay  extinguish  an  easement,  the  ownersliip  of 
the  two  estates  must  he  co  extensive,  ecpial  in  validity, 
i|uality  and  all  other  circunistaiices  of  right. 

Doritv  V.  Dininiiif^,  7S  Mi-.,  .'isl.  -^ 
Ritger  v.  Parker,  s  Cifeii,  14.-),  117.^ 
Tbouias  V.  Thomas,  2  C  M.  &  R.,  ;^4.  -^ 
Morgan  v.  Meutli,  (iO  Mich.,  2;i8.  -A^ 


When  a  right  of  way  lias  been  extinguished  l)y  unity 
of  title  and  possession  in  the  same  owner,  it  is  not  revived 
l)y  such  owner  reconveying  such  dominant  estate. 

Clements  v.  Laniht-it,  1  'raiiiit.,  liiiS. 
Morgan  v.  Meutli,  iit»  Midi.,  li.'W. 


If  the  grantor  in  such  a  case  wishes  to  revive  or 
create  such  a  right,  he  must  do  so  by  express  words  do- 
scril)ing  the  way  or  other  easement,  l)y  introducing  the 
term  in  the  granting  pari:  "Appurtenances  therewith 
used  and  enjoyecl,"  in  which   case  easements  existing  in 


-70— 

poiiil    of  fact,  l)iil,   mtl    in    p;)iiil    of   law,  will   v<*~;l  in   the 
j^rantcc. 

I'laiil  V.  .hiiii.'s,   I  AM.  iV:  l-'Jl.,  Till. 
AtUiiis  V.  HoanliiKiii,  l!  Mrti;.,  l")7,  107. 


A  distinction  must  be  noted,  however,  between  ways 
of  necessity  and  ways  of  mere  convenience.  In  the 
former  case,  although  there  is  a  merger  during  the  joint 
owiuMshii)  of  the  two  estates,  the  way  revives  upon  their 
severence. 

Grant  v.  Chase,  17  Mass.,  44i2,  447. 

Buckley  v.  Coles,  5  Tauut.,  311. 

Brown  v.  Alabaster,  L.  K.,  37  Cli.  Dlv.,  490. 


When  the  two  estates  are  held  by  the  same  person, 
but  not  in  the  same  right,  there  is  merely  a  suspension  cf. 
the  easement  while  that  condition  continues.  When  tht 
condition  changes  the  easement  revives.  Thus  when  A, 
the  owner  of  a  dominant  estate  in  fee,  ol)tains  a  leasehold 
or  life  estate  in  the  servient  estate,  there  is  a  suspension 
of  the  right  of  way  so  long  as  the  two  estates  are  held  by 
A,  l)ut  the  moment  the  ownership  is  severed  the  right 
revives. 

Manning  v.  Siuitb,  »J  Conn.,  289. 
Ritger  v.  Parker,  8  Cash.,  14o. 


IV.     EMINENT  DOMAIN. 

A  right  of  way  may  be  extinguished  by  the  exercise 
of  the  right  of  eminent  domain.  If  the  use  for  which  the 
servient  estate  is  taken  is  incom pat  able  with  a  further 
exercise  of  the  riglit  of  w;iy,  >urli  right  of  wa^'  is  incident- 


—77— 

ally  taken  also.     'Ihv  owiiur  ol"  the  way  i'^  rut  it  led  lo  riill 
compensation  lor  such  taking;. 

Stevenson  v.  Cliuttuiiooga,  20  Fed.  Rei».,  oSG. 
Ross  V.  Ttionipstjn,  7S  Intl.,  90. 
HaktT  V.  .Johnson,  lil  Midi.,  319. 
City  of  Peoria  v.  Jolinson,  oti  III.,  4."). 
Ashby  V.  Hall,  119  U.  S.,  .Jiifj. 
Webster  v.  Lowell,  142  Mass.,  324. 

At  common  law  there  could  1)6  no  extinctioh  of  a 
highway.  Once  a  hij;hway,  always  a  highway.  But  in 
all  of  the  states  there  are  statutes  empowering  cities, 
towns  and  counties  to  vacate  streets  and  highways.  These 
statutes  prescribe  the  steps  to  be  taken  in  order  to  vacate 
a  street,  or  highway,  and  also  provide  that  any  damage 
which  an  adjoining  owner  may  suH'er  by  reason  thereof" 
shall  be  ascertained  and  paid. 

The  owner  of  the  dominant  estate,  in  the  absence  of 
an  express  or  implied  agreement,  must  keep  the  way  in 
repair,  and  for  that  purpose  he  may  go  upon  the  servient 
estate  if  necessary.  And  when  the  want  of  repair  inju- 
riously ellects  the  owner  of  the  servient  estate,  it  becomes 
the  duty  of  the  owner  of  the  dominant  estate  to  make 
repairs,  and  for  his  neglect  of  duty  he  is  liabli'. 
Bell  V.  Twentynmn,  41  E.  C.  L.,  76(5. 

REMEDY    FOR   OBSTRUCTION    TO    PRIVATE    WAYS. 

In  case  the  owner  of  the  servient  estate  obstructs  a 
private  way,  the  owner  of  the  dominant  estate  has  a 
remedy  at  law  or  in  ('(piity,  but  in  addition  to  these 
renuMlies  he  has  also  a  light  to  go  ujjou  the  servient  estate 
and  remove  the  ol)sl ruftion,  if  he  can  do  so  ;ind  not  com- 
mit a  breach  of  the  peace. 


—78— 

MrC.nl  V.  Iliuli,  lil  luwa,  XUi,  ."Ms. 
ConipMiiy  V.  (Joddull,  M  N.  II.,  ■').'t,  ■'><>.  v 
Joyci'  V.  (Junliii,  7li  WiH.,  tiOT.   "^ 
Stallunl  V.  CuHhiiJ^,  7(i  Cal,,  472.  ■^ 


TUo  i»;ut y  <'X«'r<'isinj;  llic  ri^lil  of  alciliim  a  nuisance 
to  his  projjerty  must,  liowover,  see  to  it,  that,  he  does  no 
more  than  is  necessary  to  protect  his  own  rij^hts.  If  any- 
tliinj;;  is  done  beyond  that,  to  the  injury  of  the  o\yner  of 
the  servient  estate,  he  is  liable  therefor  in  damages. 
Heaili  V.  Williains.  2-')  Me.,  20!>. 

It  has  been  held,  that  in  order  to  justify  one  in  going 
upon  the  land  of  another  to  aljate  a  nuisance,  he  must 
do  so  within  a  reasonable  time  after  the  nuisance  was 
created,  an«I  tliat  if  he  fail  to  exercise  tiiat  right  within 
such  reasonable  time,  lie  coidd  not  do  so  afterwards,  but 
must  resort  to  legal  proceedings. 

Moffett  V.  Brewer,  1  Green,  (la.),  348,  351. 

In  abating  a  nuisance  life  must  not  be  endangered, 
nor  must  there  be  a  breach  of  the  public  peace. 
Davis  V.  Williams,  71  E.  C.  L.,  546. 


LIGHT    AND    AIU. 

It  is  well  settled  in  Kaiilaml  that  when  thcrr  has 
been  an  uninterrui)ted  use  of  air  or  light  from  <»r  across 
tiie  premises  of  another  for  the  n'liui-jic  period,  an  ease- 
ment therein  has  been  acquin'd. 

Cross  V.  Lewis,  2  B.  &  C,  686, 

M(«)k  V.  Miilk,  22  E.  C.  L.,  40). 


—70— 

Moort'  V.  llaWMoi), :;  U.  &  C,  .iai', 
U.  S.  V.  Appl»'t<«ii,  1  Shim.,  \\)-2. 


This  doctrine  dot^s  iiol  prevail  in  this  coiiiilry 

Parker  v.  Foote,  ll»  Wend.,  .{OK. 
Pierre  v.  Fernald,  26  Me.,  4.S(». 
Miivcrstick  V.  Sipe,  .•{;!  Pa.  St.,  .'{tW. 
Mull. Ml  V.  Sticker,  lit  Ohio,  St.,  1;J."j,  11:.'. 
In^raliani  v.  Hutchinson,  2  Conn.,  .5^4. 
Hul.hani  v.  Town,  .'W  Vt.,  LWi. 
Burke  v.  Siuitli.  Git  Mich.,  .•JSii.'^ 


Ami  decisions  in  this  counli'v  have  i:one  to  the  extent 
of  Ijohlinj;,  that  when  the  owner  of  a  house  sold  the  house 
and  retaine(l  the  adjoining  ground,  that  the  grantee  did 
not  obtain  by  an  implied  grant  an  easement  of  light  and 
air  over  such  surrounding  lands,  and  that  the  vendor 
could  buiUl  and  wholly  obstruct  the  light  from  entering 
the  windows  that  were  in  the  house  at  the  time  of  the  sale. 

Keata  v.  IIu^o.  11.5  Mass.,  2()t.J(' 
Haverstick  v.  Sipe,  :>;{  Pa.  St.,  .'JtiS.  ^ 
Burke  v.  Smith,  tilt  Mich,,  3S0.-J'-*' 


Some  of  tilt'  courts  in  this  country,  however,  hold  that 
when  there  arc  windows  in  tlu>  house  sold,  fronting  upon 
land  retained,  that  the  grantor  cannot  by  building  upon 
tiie  land  retained  darken  such  win<lows. 

U.  S.  V.  Appleton,  1  Sum.,  4!t2. 
James  v.  Jenkins,  34  Md.,  1. 
Robeson  v.  Pittinjjer,  2  N.  .!.,  Kt|.,  .57. 


Such  is  the  English  rule. 


—80— 

ruliuer  V.  Flulcher,  1  Lev.,  IJ'J. 
Allen  V.  Taylor,  L.  R.,  16  Ch.  D.,  Hoo. 


In  Burke  v.  Smit/i,  cited  above,  the  (juestion  pre- 
sented to  tlie  court  was  the  riji^Iit  of  an  adjoinin<i  owner  to 
niulicionsly  and  wantonly  obstruct  the  air  and  li^ht  from 
passing  into  liis  neifjhbor's  windows,  with  the  sole  purpose 
and  intent  of  iujurinii:  and  annoyinf;;  his  neij^hljor.  Upon 
that  question  the  court  were  e(|ually  divided.  Vcju  will 
liiid  the  discussion,  however,  a  valuable  one  upon  the 
(piestion  under  consideration. 

It  is  not  necessary  to  add  that  easements  in  both  air 
and  light  may  be  created  by  express  grant,  and  when  so 
created,  that  they  are  subject  to  the  general  rules  govern- 
ing the  use  and  enjo^'ment  of  similar  easements, 

RIGHT   TO   LATERAL    SUPPORT. 

The  soil  of  each  parcel  of  land  in  its  natural  con- 
dition, is  held  in  place  by  the  natural  pressure  or  resist- 
ance of  the  adjoining  soil.  This  pressure  or  resistance  is 
called  lateral  support.  The  rii;ht  to  this  lateral  support  is 
incident  to  the  ownershii)  of  every  parcel  of  land,  however 
small,  since  tlu^  owiu'r  is  entitled  to  its  use  and  enjoyment 
in  its  natural  condition.  The  right  to  lateral  support  is 
usually  denominated  an  easement,  each  parcel  of  land 
being  regarded  as  the  dominant  estate  as  to  each  of  the 
surrounding  parcels  and  also  a  servient  estate  as  to  each 
of  those  parcels,  the  right  being  a  cross  easement,  or  a  cross 
servitude.  It  does  not.  however,  owe  its  existence  to  cus- 
tom, usage  or  grant.  It  is  not  a  true  easement,  but  a 
right  incidiMit  to  theownershii)  of  tlie  land.  The  distinction 
is  important,  not  simi)ly  l)ecause  definitions  should  always 
be  correct  and  free  from  all  ambiguity',  but  lor  the  reason 
that    the    rides    .md    principles   governing   the    rights   of 


—81— 

parties  to  ;iii  ciisniiiuit  are  iiioililictl,  wlit-n  applied  to  Ji 
right  ill  tlie  property  itself. 

Wo  have  alrea<ly  called  yctiir  altcntiou  to  the  general 
rules  ^overiiiiiir  Ihe  use  and  enjoy uient  of  an  easement, 
applical)le  to  the  owners  of  tlu'  dominant  and  servient 
estates.  Tlie  itiiiuiples  api)lieal»I<'  to  the  enjoyment  of  the 
right  to  lateral  supj)ort  are  drawn  from  the  maxim,  "That 
a  person  must  so  use  and  enjoy  his  own  as  not  to  injure 
the  properly  of  his  neighbor."  And  it  will  be  necessary 
to  examine  somewhat  the  application  of  this  maxim  to 
the  use  of  real  estate  generally,  before  considering  its 
application  to  the  right  of  lateral  support. 

The  various  uses  to  which  land  may  be  put  may  be 
classified  under  one  of  these  heads: 

1.  Natural  use. 

2.  Artificial  use. 

3.  Use  authorized  by  the  statute. 

I.     2.     NATURAL    AND   ARTIFICIAL   USE. 

It  would  l)e  very  dillicult,  if  not  impossible,  to  frame 
definitions  that  would  furnish  any  aid  in  enabling  one  to 
classify  any  particular  use  of  land  as  belonging  to  the 
first  or  second  division  not  allbrded  by  the  terms  natural 
and  artificial.  As  a  practical  illustration  of  the  distinc- 
tion, suppose  A  and  B  are  owners  of  separate  estates  and 
that  each  erects  a  water-power  mill  upon  his  own  estate, 
A's  mill  is  supplied  with  i)ower  from  a  mill  pond  fed  by  a 
stream  crossing  his  estate,  while  the  power  for  H's  mill 
comes  from  a  mill  pond  on  his  estate,  fed  with  water 
brought  artificially  to  it.  In  such  a  case  A  has  made  a 
natural  use  of  his  land,  while  B  has  made  an  artificial  use 
of  his.  The  one  estate  had  a  natural  mill  site,  upon  the 
other  an  artificial  mill  site  has  been  created. 

When  a  person  in  the  natural   use  of  his  land  takes 


—82— 

roasoiial)lo  oaro  iu)t  to  iiijiirt'  others,  he  is  not  responsible 
for  any  (lainajj;e  rosulfini:  iVotn  such  use  not  duo  to  liis 
fanlt  or  noj^Iij^onci*. 

Smitli  V.  K.-n.lri.-k,  i\'2  K.  C.  L.,  51.5.^" 
Rockwoo.l  V.  Wilson.  U  Cusli.,  221. 
Btirry  v.  Peterson,  48  Midi.,  2<;.S. 


Wlu'ii  a  jtcrson  makes  an  arlilicial  use  of  lanti,  he  is 
liable  lor  all  daniai^es  resulting  from  such  use,  without 
reference  to  the  dej^ree  of  care  and  precaution  which  he 
may  have  exercised  to  prevent  injury.  Under  such  cir- 
cumstances he  is  an  insurer  against  loss  or  damage  to 
others. 

Rylands  v.  Fletc-lier,  L.  R.,  .3  Exch.,  352.^ 

Ry lands  v.  Fletcher,  L.  R.,  1  Exch.,  265. 

Tenant  v.  GoMwin,  2  Ld.  Raym.,  10S9. 

Smith  V.  Fletcher,  L.  R.,  7  Exch.,  305. 

Bouomi  V.  Backhouse,  96  E.  C.  L.,  622. 

Stroyan  v.  Knowles,  6  H.  &  N.,  454.. 

Lossee  v.  Buchanan,  ."j1  N.  Y.,  476. 

Brown  v.  Robbins,  4  H.  &  N.,  185. 

Pixley  V.  Clark,  35  N.  Y.,  520. 

Tremain  v,  Cohoes  Co.,  2  N.  Y.,  163. 

Uutlerwood  v.  WaMron,  33  Mich.,  2.32. 

Mears  v.  Dole,  135  Ma.s3.,  508. 

Ball  V.  Nye,  99  Mass.,  582. 

Baird  v.  Williamson,  IdO  E.  C.  L.  R.,  376. 

Buckingham  v.  Elliott,  62  Miss.,  296. 


When  a  person,  however,  makes  an  artificial  use  of 
hind,  for  instance,  by  storing  water  on  his  premises,  using 
reasonable  precautions  to  prevent  its  escape,  and  by  an 
act  of  God  it  escapes,  he  is  not  liai)le  for  damages  caused 
thereby.     Wiien  the  law  imposes  a  duty  upon  a  person 


—83— 

tlu'  law  excuses  liiiii  from  tlie  [jeilormanct?  of  siirh  duly  il" 
he  is  pn'venteil  hy  the  |)iil)lic  enemy  or  the  act  of  (Jod. 

NicliolH  V.  .MhihIuii.I,  I..  K.,  J  lv\.   I).,  1. 

3,      I'SK    Al'TII()IU/.i;i)    HY    STATUTE. 

W'lifii  the  use  is  aiitliorizi'd  by  an  ad  of  tlie  legisla- 
ture, onlinaiy  eaie  and  prudence  on  the  part  of  the  person 
authorized  to  do  the  work  will  relieve  him  from  all  re- 
>ponsil»ility  for  damaj^es  resulting  therefrom. 

RttdfliflH  Kxes.  v.  Hiooklyii,  4  N.  Y.,  lH.j. 

S,  C.  0.5  Am.  Dec,  357. 

I'oiitiac  V.  Carter,  .32  Mich.,  1(J4,  IMU. 
CurHon  V.  Centrul  K.  R.,  35  Cat.,  32-5,  333. 
nrooklyii,  etc.,  v.  AmiMtmnf?,  t',  x.  Y.,  234,  24'». 


These  authorities  make  a  clear  distinction  between 
the  natural,  usual  and  ordinary  use  of  laml  and  an  arti- 
ticial  use,  hut  give  no  dctinitc  rules  under  which  dilfercnt 
uses  are  to  he  cla>^si(ied.  It  would  seem  that  the  natural 
use  to  which  a  mine  was  to  he  put  was  to  remove  the 
Miiiierals,  and  consequently,  it  is  ludd  that  where  the  mine 
owner  works  his  mine  in  the  usual  manner  and  does  noth- 
ing, for  instance,  to  interfere  with  the  natural  tlow  of  the 
water,  thai  he  is  not  responsihle  for  any  resulting  damage. 

Smith  V.  ivfiniiicii,  &2  K.  C.  L.,  51.-). 
Hair.l  v.  \Viiniiins..ii,  lOi)  E.  C.  L.,  37G. 


If  on    the    other    hand    he   <loes    interfere    willi     I  he 
natural  (low  (if  the  water,  he  is  responsihle. 

Smitli  V.  Ivfii(lrii-k,  <i2  K.  (\  L.,  515. 
Il:iirii  V.   Williniusoii,  Ki'.t  h).  C.  L.,  aTG. 


—84— 

It  would  scoin  llial  while  llic  removal  of  iniiierals  is 
tlie  nuliiral  use  of  (he  uiiiie,  it  is  not  the  natural  use  of 
the  land  rdidaiiiin;:  the  nnne.  That  while  an  adjoiniuf; 
mine  owner  cannot  complain  of  any  dama;:;e  which  he 
may  sustain  from  the  working;  of  the  mine  in  the  usual 
mannei-,  the  owneidfihe  surface  adjoining  the  mine  may, 
and  that  in  the  latter  case  tlu^  mine  owner  is  an  insurer  of 
the  safety  of  the  surface  in  its  natural  condition,  and  also 
of  improvements  thereon  which  do  not  contribute  to  the 
injury. 

Stroyan  v.  Knowles,  0  H.  &  N.,  4.54. 
Brown  v.  Bobbins,  4  H.  &  N.,  187. 


It  would  seem  also  that  any  use  which  necessitates  a 
material  change  in  the  surface  of  the  soil,  or  the  raising 
of  water  above  its  natural  level,  subjects  the  person  mak- 
ing such  use  to  liability  for  all  damages  caused  thereby 
naturally  resulting  therefrom. 

Smith  V.  P'letcher,  L.  R.,  7  Excb.,  305. 
Mears  v.  Dole,  135  Mass.,  508. 
Pixley  V.  Clark,  ^5  N,  Y.,  520. 


LECTURE  IX. 


i-\ii:kal  sriM'oin-  coxi  intki). 

Since  l.nitl  I'xU'MiK  IVoiii  tlif  ct'iilcr  ol'  the  fiirlli  up 
wards  to  the  /cnilli,  mikI  iIh'  owner  lias  a  right  to  make 
any  nse  of  it  he  may  desire,  consislent  with  the  maxim 
I  hat  he  sliall  <(»  n^f  his  own  as  not  t(»  injure  the  property 
III"  annlhei',  it  lullow-^  th;it  he  may  make  an  excavation  in 
hi--  own  lan'l  ii|i  to  the  very  l)onn<hiry  line  and  to  any 
deplh,  pi()\  idiuL:  -iicii  e\ca\  ;il  ion  (h»es  not  injure  his 
neiiihhor. 

Makinii  an  excavation,  however,  is  not  the  natural 
use  of  the  land,  although  it  may  he  a  usual  ami  necessary 
use.  it  necessarily  causes  a  change  to  he  made  in  the 
naluial  londition  ol'  the  --oil,  and  since  the  adjoininic 
owner  has  a  right  to  the  lateral  support  ol'  the  soil  in  its 
natural  ccuidition.  the  |)eison  makinii  the  excavation  is 
lialtie  if  damage  re--ulis  from  ihe  e\ca\ation.  The  extent 
of  his  liahility  is  often  a  perplexing  (juestion. 

It  i>  well  settle(l  that  the  owner  of  land  is  entitled  to 
have  il  supp«trt»'d  in  its  natural  condition  l)y  the  adjoin- 
ing soil,  and  that  all  damage  resulting  to  the  soil  in  it> 
natural  condilir»n  I'rom  an  ex<-avation.  the  jierson  makini: 
I  he  excavation  is  liahle. 

Dyor  v.  SI.  Paul,  J7  Minn.,  t.57. 
K:irr:in(l  v.  Miirslicll.  .■■,.)  .\  .  V.,  520. 
7 


— {SO— 

Mcfiuin'  V.  Grant,  'J")  N.  J.  L.,  ;$■")(>. 
Thurston  v.  Hjiricook,  lli  Mass..  lilid. 


When  the  fXcaviilioM  is  tlic  s(»lc>  ciii'-c  ol'  the  daiuage 
to  the  soil  ill  its  natiiial  coiidil  ion,  tlu*  ])('ison  inakiiiji  the 
excavation  is  liable  for  sucii  dainai^e  without  reference  to 
the  skill  and  care  with  which  the  excavation  is  made. 
And  this  liability  extends  to  all  damage  to  any  right  in 
the  soil  in  its  natural  condition,  smdi  as  a  right  ol  "way. 
Foley  V.  Wyctli,  L'  Allen,  131,  133. 

If  the  excavation  is  made  without  due  care  and  rea- 
sonable skill  the  person  making  it  is  also  liable  for  all 
damage  to  improvements  upon  the  land  caused  l)y  his 
negligence  and  want  of  care. 

City  of  Quincy  v.  Joues,  70  111.,  231. 


The  right  to  lateral  support  is,  however,  limited  to 
the  support  required  to  maintain  the  soil  in  its  natural 
condition,  and  consequently  when  the  pressure  upon  the 
soil  has  been  increased  by  the  erection  of  l)uildings,  or 
other  structures,  the  owner  has  no  right  to  lateral  sui)port 
against  such  additional  pressure,  and  if  such  increased 
pressure  contributes  to  the  damage,  the  person  making  the 
excavation  is  not  liable. 

Charles  v.  Rankin,  22  Mo.,  560. 
Wiun  V.  Abeles,  35  Kan.,  85.  -a 
Tunstall  v.  Christein,  80  Va.,  1.^ 


Suppose  damage  results  to  improvements  and  the  im 
provements  have  in  no  way  contributed  to  the  cause  of 


—87— 

tiic  (laiiia^o,  ill  such  a  case,  what  is  the  rule:'  It  woiihl 
seem,  that  in  this  country,  the  party  makiiif^  the  excava- 
tion is  not  lial)le  for  damage  to  such  improvements.  Such 
is  uii<l(>iil>tiMlIy  the  iiilc  in  Massachusetts. 

( Jiliiioic  V.   Diiscoll,  1132  Muss.,  !!»!».     ^ 


We  do  not  (•()n>i(l('r  that  rule,  liowever,  firmly  estab- 
lished and  certainly  the  Kn<:;lish  rule,  whicii  holds  that  in 
such  case  the  i)arty  making  the  e.xcavation  is  liable  for 
damages  to  the  improvements,  commends  itself  to  the 
reason. 

Stroyan  v.  Ivnowles,  U  H.  «&  N.,  454. 
Brown  V.  Kol)l)iiis,  4  H.  &  N.,  18(5.    "^ 
Aurora  v.  Fox,  78  Iiid.,  1. 


Since  a  person  who  makes  an  excavation  upon  his 
own  premises  is  liable  for  all  damages,  not  only  to  the 
soil  in  its  natural  condition.  i)ul  to  ini[)royements  situate<l 
thereon,  which  arc  due  to  negligiMu-e  and  want  of  skill  on 
his  part.it  becomes  important  to  consider  what  is  regarded 
as  reasonable  care  and  skill  in  this  class  of  cases. 

1.  The  i)erson  making  the  excavation  must,  if  neces- 
sary to  tiie  safely  of  the  adjoining  soil,  make  use  ol  some 
support  that  shall  br  sullicient  to  maintain  it  in  its  natural 
condition.  If  one  should  dig  down  below  the  foundation 
of  an  adjoining  building,  without  shoring  it  up  to  the  ex- 
tent at  least  of  the  lateral  support  re(piir('(l  by  the  land  in 
its  natural  condil  inn,  such  comluct  on  his  part  wnuld  be 
li(>ld  lo  be  gross  negligence. 

Aston  V.  Nolen,  <i3  Cal.,  litiH. 
Hrowii  V.  Werner,  40  M(i.,  lo. 


—88  — 

2.  Ilf  iiiiisl  'Xw('  rcasonahlc  notice  tn  t lie  adjoiniiiL; 
owner  of  llu*  oxicnl  and  cliaraclcr  oC  the  excavation  he  is 
about  to  make,  and  he  nuisl  permit  such  owner  to  iro 
n]>on  his  prenii-es  and  there  shore  up  his  l>uildiui:.  or  taice 
any  other  proper  and  reasonabh*  steps  and  precautions  to 
l)reveiit  injury  to  such  Ituildin;;. 

Shafer  v.  Wilson.  44  Md.,  20S. 
Aston  V.  Xoliiri,  t;:5  Cal.,  269, 


3.  He  must  use  such  skill  and  care  in  the  prosecution 
of  the  work  as  a  reasonably  prudent  and  careful  man 
would  exercise  to  guard  ai^ainst  damage  to  the  a<lJoining 
building.  For  instance,  he  should  excavate  at  the  adjoin- 
ing wall  in  sections  and  replace  the  dirt  tlius  removed 
with  sections  of  the  new  wall  to  be  erected  by  him,  or 
adopt  some  other  equally  effective  measures  against  acci- 
dent and  damage. 

LiiSala  V.  Holbrook,  4  Paige.  Ch.,  109. 


At  one  time  the  opinion  prevailed  that  a  right  to 
lateral  support  for  a  building  could  be  acquired  by  pre- 
scription. Lord  EUenborough  made  certain  obiter  dicta 
to  that  effect. 

Stansell  v.  Jollard,  Selw.,  X.  P.,  444. 


But  it  is  now  well  settled  in  England  that  this  right 
cannot  be  acquired  by  prescription.  The  right  by  pre- 
scription is  based  upon  the  supposition  that  there  was  a 
grant  at  some  remote  period,  all  evidence  of  which  is  now 
lost,  and  the  court  infers  such  grant  from  proof  that  the 
assumed  grantee  has  used  and  asserted  the  right  adverselv 


-89— 


I'or  lilt"  re<|iiiNii»'  |tt'iioi|.  lint  in  the  case  of  a  building 
erected  upon  a  man's  own  premises,  the  owner  exercises 
no  riijlits  adverse  to  tiiose  of  any  other  owner,  and  conse- 
quently there  is  no  adverse  possession,  or  user,  on  his 
pari. 

AuKiis  V.  Ihilton,  L.  II.,  .{  (^  B.  IJiv.,  Ho. 


Such  is  the  rule  also  in  this  count  i\v,  supported  l»y  the 
weii;ht  of  authority. 

Gilmore  v.  Driscoll,  122  Muss.,  1U!>.  2<t7. 
Mitchell  V.  Rome,  49  Ga.,  Ht. 
Wliiii  V.  Abeles,  .'5")  Kan.,  S.l. 
Taiistall  V.  (!Urislian,  SO  Va.,  1. 

There  is  an  intimation,  in  many  of  the  cases,  that 
when  the  owner  of  two  parcels  of  land  sells  one  with  a 
buildiny;  thereon,  situated  so  near  the  boundary  line  that 
the  lateral  support  of  the  soil  in  its  natural  condition  is 
not  sulTicient  to  sustain  it.  thai  the  vendor  has  burdened 
the  land  not  sold,  with  the  support  of  the  additional 
burden  caused  by  the  building,  for  the  reason  that  when 
he  i)arled  with  the  land  there  went  with  the  ;zrant  as 
incident  thereto,  a  rii^ht  to  have  the  surface  of  the  soil 
supported  in  its  then  condition. 

Humphries  v.  Broaden,  04  E.  C.  L.,  7;>9. 
Rowbothom  v.  Wilson,  8  H.  L.  Cas.,  :^4S. 
Montgomery  v.  Masonic  Hull,  70  Ga.,  38. 


SUB.J.VCKNT    SUri'OKT    OF    LAND. 

There   may    be   two   separate   and   distinct    freehold 
estates  in  the  same  i)arcel  of  land.     One  person  may  own 

the  surface  and  another  the   iiiineraN  underneath  the  -ur 


—90— 

{'ace.  In  such  a  case  llio  surface  owner  is  still  llie  owner 
from  the  center  of  tlie  earth  to  the  zenith,  except  aa  to 
the  minerals. 

Zinc  Co.  V.  KraiiUliiiite  Co.,  Hi  N.  J.  Eq.,  3iJli,  :{41. 

The  mine  owner  lias,  as  incident  U)  his  estate,  a  ri^ht 
to  go  upon  the  hind  for  the  purpose  of  sinking  a  shaft,  re- 
moving the  minerals  and  also  to  make  such  erections  as 
are  necessary  for  that  purpose. 

Erickson  v.  Midi.  Iron  &  Land  Co.,  oo  Midi.,  H04. 

In  working  the  mine  suflicient  penuauenl  support 
must  be  left  to  sustain  the  surface,  au'l  if  the  mine  owner 
fails  to  provide  such  support  and  the  surface  sul)sides,  or 
caves  in  solely  from  the  want  of  such  support,  he  is  liable 
for  all  damages  to  the  surface  and  to  improvements 
thereon  and  erected  at  the  time  the  minerals  were  con- 
veyed. 

Humphries  v.  Brogden,  M  E.  C.  L.,  7.Sf). 
Erickson  v.  Midi.  Iron  &  Land  Co.,  .")(•  Midi..  <>04. 

If  the  subsidence  is  due  in  part  to  the  weight  and 
increased  pressure  of  l^uildings  erected  on  the  surface, 
which  have  been  placed  thereon  since  the  grant  of  the 
minerals,  the  owner  of  the  mine  is  not  liable.  If  such 
buildings  were  on  at  the  date  of  the  grant  he  is  liai)le,  for 
the  reason  that  he  is  required  to  furnish  the  surface  suffi- 
cient support  to  sustain  it  in  its  nalural  coudition  in  any 
event,  and  also  to  sustain  any  buildings  thereon  at  the 
time  of  the  creation  of  the  estate,  such  support  being  an 
easement  of  necessity  reserved  by  implication  in  the  grant 
of  the  mine. 


-91— 

Backhouse  v.  Honoini,  U  H.  Ij.  ('as.,  ")(».'{. 
Partridge  v.  Scott,  .>  M.  it  \V.,  Ulio. 

Anahigous  to  lutoral  and  >ul)ja('C'nt  support  ol'  the 
soil  is  the  rifi;ht  of  support  wliicli  the  owner  of  one  build- 
inj;  ha-^  in  atmlhtT  under  certain  circumstances.  For  in- 
stance, il"  two  l)uildiM<is  are  erected  by  tlie  same  owniT  in 
such  a  manner  that  each  is  supported  and  kept  in  position 
by  the  other,  and  such  owner  al'terwai'ds  sells  one  of  the 
l)uildin^s,  the  ^raut  conveys,  as  ap|)urtenant  to  tlie  estate, 
an  easement  of  support  for  the  buildin*;  conveyed  in  the 
building  retained. 

Richards  v.  Rose,  i>  Exch.,  218. 

United  States  v.  Api)leton,  1  Suininer,  4i<-. 

l!iil  no  servitude  for  the  su|»porl  of  one  biiildin::  by 
another  arises  from  mere  juxtaposition,  however  l<»n;^ 
continued. 

Peyton  v.  Mayor,  etc.,  9  B.  «&  C,  72o. 
Napin  v.  Bulhvinlile,.J  Rich.,  311,  324. 

PARTY   WALLS. 

A  party  wall  is  a  wall,  which  by  grant  or  prescription, 
is  used  to  support  contiguous  structures  belonging  to  dif- 
ferent proprietors.  The  center  line  of  such  wall  is  usually 
the  boundary  line  of  Ihe  .Hljoining  lots.  Ixit  the  wall  may 
be  wholly  on  one  side  of  tiic  l)ouii<larv  line  or  even  a  con- 
siderable distance  therefrom. 

Field  V.  Leiter,  lis  111.,  17. 

Such  wall  may;  1.  lielong  to  the  adjoining  pro- 
prietors   as   tenants   in   common.      '_*.    It    may   be   ilivided 


—92— 

l()ii<rihi(liM;illy  into  two  strips,  eudi  slrij)  l)('l()ii<;iii«j;  to  the 
adjoiiiini:;  owner  in  severalty.  •"..  It  may  Ix'loiii:  wholly  to 
one  proprietor,  siihjec't  to  a  ri^lit  held  l»y  tlic  otiicr  to  have 
it  maintained  as  a  i)ai'ty  wall.  I.  It  may  l)e  divided 
lon;;itudinally  into  two  moities,  each  moiety  subject  to  a 
cross  easement,  a  riijht  of  support  in  favor  of  the  otlier. 
Eitlier  of  tlicsr  conditions  of  ownership  may  i-csult  from 
express  contract. 

When  a  wall  has  been  used  as  a  pirlv'  wall  for  more 
than  twenty  years,  such  user  raisins  the  presumption,  in 
the  absence  of  rebuttin^j;  evidence,  that  it  is  a  party  wall, 
made  so  by  an  agreement  l)etween  the  parties,  or  was 
l)uilt  by  the  parties  for  thai  purj)ose.  even  if  such  wall  is 
wholly  upon  the  land  of  one  of  the  parties. 

Scliile  V.  Urokaiuis,  80  N.  Y.,  'il4. 
Brown  v.  Werner,  40  Md.,  lo. 
Dowling  V.  Hennings,  20  Md.,  179.  184. 
Montgomery  v.  Masonic  Hall,  70  Ga.,  .'iS. 
Koenig  v.  Haddix,  21  111.,  App.,  o.S. 


When  the  fact  is  established  by  u>er.  that  a  particular 
wall  is  a  party  wall,  and  there  is  no  cvideiu-e  as  to  the 
ownership  of  the  soil  upon  which  it  rests,  such  user  is 
prima  facie  evidence,  that  the  wall  and  the  land  upon 
whicli  it  rests,  are  owned  in  common  and  that  the  adjoining 
owners  are  tenants  in  common  of  sucii  wall. 

Wiltshire  v.  Sidford,  1  M.  &  R.,  404. 
Cubitt  V.  Porter,  S  B.  C,  2o7. 
Wolfe  V.  Frost,  4  Saiidf.,  72. 
Weynian  v.  Ringold,  1  Bradf.,  ♦U. 


When,  however,  it  ap[)ears  that  su(di  wall  was  erected 
one  halt'  upon  the  laml  of  each  adjoining  owner,  then  each 


—93— 

owns   that  [tMi.  of  tlit'  wall  staiitliii^  upon   hi-  own   lain 
and  has  an  easement  of  snpport  in  the  other  half. 

Matt  V.  Hawkhis,  o  Taunt.,  lio 

Peyton  v.  Mayor  of  London,  '.»  B.  iV-  < '.,  Tl'l'. 

Slierred  v.  ('Ihco,  4  Sandf.  4.sn. 

lUirtoM  V.  MofViK,  ;]  Oregon,  I'n. 


In  case  ea<'h  proprietor  owns  one-half  of  the  wall 
divided  lonptndinally,  with  no  easement  of  support  in  the 
other  half,  either  may  pare  away,  or  indeed  wholly  re- 
move his  half,  althouj^h  this  would  leave  the  remaining; 
half  of  little  or  no  value  to  its  owner. 
Cubitt  V.  Porter,  S  B.  C,  2.57. 

When  a  party  wall  is  owned  in  coinnion  and  has  he- 
come  so  ruinous  as  to  l)e  uniit  lor  use,  either  owner  may 
tear  it  down  and  rebuild  it  of  the  same  thickness,  lenirth 
and  height  that  it  was  originally,  and  the  other  owner 
must  contribute  his  share  of  the  cost  of  the  new  wall. 

Stedinan  v.  Smith,  8  E.  &  B.,  1. 
Cam|)l)ell  v.  Meiser,  4  Jolin  CMi.,  334. 


LECTURE  X. 


I'AKTY   WALLS   CONTINUED. 

When  each  ])i()|)iietor  owns  one-half  of  the  wall,  with 
an  easement  of  sui)poil  in  the  other  half,  each  owes  to 
the  other  the  duty  of  keepiiii;'  his  half  in  repair,  and 
neither  may  do  anything  that  will  endanger  or  weaken  it. 
Either  one  may  rightiiilly,  when  it  is  for  his  interest  so  to 
do,  lower  the  foundation  or  increase  the  lieight  of  the 
wall,  and  he  may  also  increase  its  thickness  by  adding  to 
it  on  his  side.  But  the  owner  making  any  such  changes 
in  a  party  wall,  on  his  own  motion,  is  liable  for  all  dam- 
ages which  may  result  to  the  other  party  therefrom. 
This  is  true  no  matter  with  what  skill  and  care  he  per- 
forms the  work. 

Eno  V.  Del  Vechio,  4  Duer.,  53. 

Brooks  V.  Curtis,  50  N.  Y.,  639,  6-44. 

Aiidne  v.  Hazeltiiie,  58  Wis.,  395. 

Bradbee  v.  Christ's  Hospital,  4  M.  &  G.,  714,  7(JI. 

Webster  v.  Stevens,  5  Duer.,  553,  556. 

Dowliiitr  V.  Heiinini::,  20  Mil.,  179 


The  change  made  must  not  alter  essentially  the  char- 
acter of  (he  wall,  for  instance,  must  not  convert  a  solid 
into  a  hollow  wall,  or  convert  a  solid  wall  into  one  having 
windows. 


—95— 

Phillips  V.  Bourdinun,  4  Allen,  147. 
Diiuenlmuer  v.  Devine,  51  Tex.,  480, 
Volhuers  Appeiil,  (U  Pa.  St.,  118. 


It'  such  a  party  wall — wiieu  each  owns  one-half  with 
n  cross  easenieiit  of  support — is  destroyed  by  the  elements 
suddenly,  or  through  natural  causes  it  falls  into  such 
decay  and  ruin  as  to  make  it  unfit  for  use,  neither  party 
is  obliged  to  repair  or  rebuild.  Its  lej^al  existence  as  a 
party  wall  under  siudi  circumstances  may  be  terminated 
by  either  party  givini:;  the  other  reasonable  notice  to  tliat 
etlect.  This  would  be  the  case,  althou<;ii  the  a£;reement 
under  which  it  was  built,  provided  that  it  should  continue 
a  party  w.ill  forever,  in  the  aijseuce  ot  a  covenant  to 
rebuild,  in  case  of  its  destruction  by  tJie  elements.  ''  For- 
ever"" is  construed  to  mean,  forever  with  reference  to  the 
continuance  of  that  wall,  in  other  words  that  it  shall  con- 
tinue a  party  wall  durinii  its  entire  existence. 

Antomarchi  v.  Russell,  G.S  Ala.,  'JoG. 
Sherred  v.  Cisco,  4  Sandf.,  480,  48!». 
Orman  v.  Day,  5  Florida,  3a"),  392. 
Partridge  v.  Gilbert,  1")  N.  Y.,  (ioi. 


The  reason  i,Mven  fur  the  above  ride  is  that  the  parties 
to  the  a<2;reement  have  made  it  with  reference  to  the 
present  value  of  the  property  for  particular  puri)osos  and 
to  its  present  surroundinjrs,  and  not  with  reference  to  a 
future  period  beyond  the  natural  life  of  the  wall;  that  at 
the  end  of  the  natural  life  of  the  wall,  the  value  of  the 
property  and  its  surroun<lini2;s  may  be  siudi  that  one  of  the 
parties  may  desire  to  erect  a  building  <>!' another  (duiracter 
and  description. 


—96— 

Tliis  const  ruction,  it  would  seem,  is  si  ill  an  ojxmi  (|ues- 
ion  in  the  slate  ol"  New  York. 

Campbell  v.  Mesier,  4  Joliii  Cii.,  li'.'A. 
Schile  V.  Brokhahus,  80  N.  Y.,  614. 
Sherred  v.  Cisco,  4  Sand.,  480. 
Partridge  v.  Gilbert,  15  N.  Y.,  601. 
Brondage  v.  Warner,  2  Hill,  145. 


Tlie  supreme  court  of  Mississippi  have  carried  this 
doctrine  to  the  extent  of  holding,  that  when  either  ol  the 
buildings  separated  by  a  party  wall  is  destroyed,  such 
destruction  extinguishes  the  easement  of  the  other  pro- 
prietor in  the  wall  as  a  party  wall. 
Hoffman  v.  Kubn,  57  Miss.,  746. 


And  the  supreme  court  of  Ohio  has  gone  still  further 
and  held,  that  when  A  and  B  erected  dwelling  houses, 
using  a  party  wall,  and  owing  to  the  growth  of  the  cit}"- 
(Cincinnati),  the  land  upon  which  the  houses  were  built 
became  more  valuable  for  business  purposes  than  dwelling 
house  purposes,  that  either  party  upon  giving  the  other 
timely  notice,  could  tear  down  such  wall,  although  in  good 
condition  and  safe  for  the  purposes  for  whicii  it  was 
erected. 

Hiatt  V.  Morris,  10  Ohio  St.,  528. 


The  better  opinion  seems  to  l)e,  that  where  a  party 
wall  is  erected,  that  there  is  an  implied  covenant  that  it 
shall  be  maintained  so  long  as  the  buildings,  or  either  one 
of  them,  is. capable  oi"  safe  and  l)eneficial  enjoyment  and 
occupation,  and  that  neither  party  without  the  consent  of 


-97— 

IIk'    other,   can    iiilcrrcrc    willi    -^iidi    wall-    lo    iIm-    ollicrs 
injury. 

Dowliii^r  V.  Mi'iiiiiri;,',  l!(i  .M«i.,  17!t. 

Hradht-e  v.  Cliiist's  Hospital,  4:{  E.  C.  L.,  .W8. 

BroiiilaL'e  v.  Wariu-r,  2  Hill,  14'). 


When  oiR'  ol'  lilt'  owiu'i-  ul'  a  |)aity  wall  has  iiicrca-tMl 
its  Icniith,  or  heiirhl,  for  his  own  licndil,  he  caiiiiol  coiiipcl 
tlie  other  party  to  contribute  to  the  cost  until  lie  makes 
use  of  such  addition.  The  other  party  must  then  pay 
one  half  the  value,  not  exceedini?  one  half  the  cost  of 
such  iniprovenient. 

Sanders  v.  Martin,  i*  Lea.,  (Teiiii.),  213. 

As  we  liave  seen,  when  a  party  wall  is  owned  in 
common,  either  may  repair  and  compel  the  other  to  con- 
trihute;  whenever  the  wall  is  owned  in  severalty,  with  a 
cross  easement,  it  is  not  so  evident  how  repairs  may  be 
enforced.  It  is  very  desirable,  therefore,  that  in  all  party 
wall  contracts,  the  covenants  in  regard  to  repairs  should 
be  very  full  and  delinite. 

A  party  wall  can  only  be  created  by  deeil,  prescrip- 
tion, or  under  the  statute.  A  person  catinot  by  merely 
building  a  wall  one-half  u[)on  his  own  land  and  one-half 
upon  that  of  a  neighbor,  create  a  party  wall. 

List  V.  Hornbrook,  2  W.  Va.,  .UO. 
McCord  V.  Herrick,  Is  111.,  A  pp..  4J.{. 

When  the  wall  is  (treated  by  deed,  the  deed  should  be 
executed  with  tlu^  same  formalities  as  a  diu'd  of  real  estate 
and  recorded,  and  thus  the  rights  of  all  i)arties  in  interest 
will  be  fully  protected.     This  is  not    necessary,  however. 


—98— 

A  iiu'nioi;in(liiiri  in  wii ting,  signed  li.v  tlic  imilics  or  their 
agents  lawfully  aiilliori/ed,  is  sufTicient,  and  indceil  if  the 
wall  is  i)nilt  nndcr  a  i)ar(»l  airrecnient,  it  Itccoincs  a  l)arty 
wall.  And  it  lias  iiccti  held,  tiiiil  when  a  parly  wall  was 
partially  hiult  under  a  i)ar()l  ai^reenient,  such  agreement 
l)ecaine  an  irrevocable  license  under  which  tlie  wall  might 
be  completed. 

Riiidf^e  V.  Baker,  57  N.  Y.,  2n9. 


When  a  person  erects  a  block  of  buildings  and  then 
conveys  them  separately  to  different  persons,  the  walls 
separating  each  from  the  other  become  party  walls. 

Brooks  V.  Curti.s,  ")<)  N.  Y.,  fi3!». 


And  it  has  been  held  that  when  two  buildings  were 
supported  by  a  party  wall  and  were  afterwards  sold  to 
different  grantees  by  metes  and  bounds,  and  the  boundary 
line  between  the  parcels  was  Aoe  feet  distant  from  the 
division  wall,  such  wall  was  nevertheless  a  i)arly  wall  for 
the  support  of  both  buildings. 

lietiry  v.  Kock,  SO  Ky.,  391. 

Iteiner.s  v.  Y^ouiig,  3S  Hun.,  33-3. 

Hanoook  L.  Ins.  Co.  v.  Patterson,  1(I3  Ind.,  oSiJ. 


Tliere  are  statutes  in  Iowa  and  Pennsylvania  wliitdi 
provide  that  when  an  adjoining-  owner  desires  to  improve 
his  property  by  erecting  a  l)uilding  thereon,  he  may  l)uild 
a  party  wall  one-half  of  which  may  rest  upon  the  adjoin- 
ing owners  land  and  thai   if  such  wall  is  afterwards  used 


— yi»  — 

by  siR'Ii  ad.joiiiiiiir  owner,  lie  sIimII   i»;iy  oiu'  li:ilf  tlif  value 
to  thf  other  owiier. 

Bertram  v.  Curtis,  .Jl  lowu,   Ifl. 
Hart  V.  Kiuther,  5  S.  I'i  II.,  1. 
Vnlltiu'r  Appeal,  •;!   Pa.  St.,  lis. 


Massacliiisetts  had  a  (•()h)iiial  statute  coiitainiii^  sub- 
stantially the  same  provisions.  In  the  ease  of  Quinn  v. 
Morse,  130  Mass.,317,  the  siipreiue  «<>iirt  ol"  Massachusetts 
held  that  this  law  was  still  in  force,  but  the  sanie  ques- 
tion arose  a  second  time,  and  it  was  held  that  the  statute 
practically  deprived  a  person  of  his  property  without  his 
consent  and  without  due  jtrocess  of  law,  and  was  therefore 
unconstitutional. 

Wilkins  v.  Jewett,  Vi\)  Mass.,  29. 


It  frequently  hapi>ens  that  one  of  the  owners  of 
adjoining  lots  is  anxious  to  improve  his  lot  by  building 
thereon  before  I  he  (.ther  owner  is  ready  to  improve  his, 
and  is  willing  to  be  to  the  entire  expense,  in  the  iirst 
instance,  of  erecting  a  i)arty  wall  and  to  wait  until  such 
wall  is  used  by  the  other  owner  to  lie  ri'iinl»ur--etl  tor  one- 
half  of  the  cost  of  the  wall.  In  case  one  parly  builds  a 
party  wall  under  an  agreement  embodying  such  an 
arrangement,  and  the  wall  is  afterwards  used  by  the  other 
party  bctore  there  has  been  any  change  in  the  ownership 
of  either  lot,  no  dilliculfy  arises  as  to  the  rights  of  both 
l)arties.  But  in  case  either  party  sells  his  lot  before  such 
wall  is  u■^(Ml  Ity  both,  the  (piestion  ari^t's,  whether  the 
agreement  to  pay  one  half  of  the  cost  when  the  wall  is 
used  is  a  covenant  running  with  the  land  or  a  niere  per- 
sonal  contract  between   the    parties.     This  question    has 


—100— 

1)0011  raisod  in  ;i  lariK-  numlior  of  t-asos,  and  this  seems  to 
l)o  tlio  nil«'. 

Whoii  A  and  15  a.i;n'«'  thai  A  -hall  l)iiild  a  party  wall 
(>ne-li;iir  of  wiiicdi  shall  rosi  upon  \Vs  «;n)iiMd  and  bolon;:; 
to  H  and  l)o  paid  for  wlion  used  \>y  hit!i,snch  afi;reeineiit  is 
a  moro  personal  proiniso  on  the  pari  of  l>  and  is  not  a 
covenunt    ninuini:'  with  the  land. 

Wlion  tho  atifoenionl  is  in  oirocf  I  hat  A  shall  huild  a 
parly  wall,  one-half  to  rest  upon  H's  land,  and  that  H  shall 
have  the  i)i'ivile^:e  of  huyinj:  and  u-iiit:  such  hall'  upon 
payinj:  one  half  of  the  cost,  such  covenants  run  with  the 
land  and  bind  the  vendee  of  B.  Su(di  an  agreement,  iiuw- 
ever,  must  be  recorded  or  it  will  not  bind  a  purchaser 
without  notice. 

Cole  V.  Hughes,  54  N.  Y.,  444. 
Gibson  V.  Holden,  115  111.,  19!t. 
Bolph  V.  Ishaiii,  28  lud.,  37. 
Weld  V.  Nichols,  17  Pick.,  538,  543. 
Maine  v.  Cuiuston,  98  Mass.,  317. 
Richardson  v.  Toby.  121  Mass.,  457. 
Burlock  V.  Peck,  2  Diier.,  90. 
Piatt  V.  E<,'fj;leston,  20  Ohio  St.,  414. 
Roche  V.  Ullnian,  104  111.,  11. 
Sharp  V.  Cliedham,  88  Mo.,  498. 
Keating  v.  Korf  hage,  88  Mo.,  524. 
Toinbliii  V.  Fish,  18  III.,  App.  439. 
Hart  V.  LyoM,  90  N.  Y.,  003. 

Nalle  V.  Paggi,  72  Tex., 

Nalle  V.  Paggi,  1  L.  H.  A.,  3.3  and  note. 


If  the  agreement  rests  in  ]»arol,  it  constitutes  a  mere 
personal  contract,  no  matter  what  were  its  terms  or  how 
they  were  expressed. 

List  V.  IIurnl)n..)U.  2  W.  Va..  .Ilu. 


—10]  — 

EASEMENTS    OP   SUIM'OK^  KTC,    WIIKN    SEVERAL    FEHSOXS   OWN 
SEPARATE    TENEMh^S   COVERED    UY   THE    SAME   ROOF. 

There  may  l)e  separate  owners  of  diflferent  parts  of 
the  same  Imildin*!;,  and  in  contemplation  of  hiw,  each  is  the 
owner  of  a  separate  tenement.  Such  tenement  may  con- 
sist of  the  whoh;  of  one  story  or  simply  of  a  single  room. 
The  rights,  (Iiilics  and  oldigations  to  each  other  of  parties 
holding  <\\r]\  interests  in  real  estate  are  by  no  means 
clearly  delined  by  the  common  law.  In  case  A  is  the 
owner  of  the  foundation  and  first  story,  and  B  is  the  owner 
of  the  second  story  and  roof,  A  has  an  easement  in  tiie 
roof  of  shelter,  and  13  has  an  easement  in  the  foundation  of 
support,  and  it  is  well  settled  that  neither  may  do  any 
overt  act  which  will  injure  or  destroy  the  easement  of  the 
other.  But  it  is  by  no  means  certain  that  either  can  be 
compelled  to  make  needed  repairs,  A  in  the  foundation 
'and  be  in  the  roof,  or  that,  if  A  makes  repairs  in  the  roof, 
or  B  in  the  t'ouudation,  that  tlie  one  making  the  repairs  can 
compel  the  other  to  reimburse  him  for  the  cost. 

Ottuinwa  Lodge  v.  Lewis,  34  Iowa,  67. 
Pierce  v.  Dyer,  109  Mass.,  374. 
Lorinj^  v.  Bacon,  4  M;iss.,  575. 

Nor  is  either  party  liable  to  the  other  for  damages 
caused  by  want  of  repairs  to  his  tenement. 

Cheesborough  v.  Green,  10  Conn.,  318. 
Tenant  v.  GoUhvin,  1  Salk.,  360. 


The  supreme  court  of  Massachusetts  holds  that  while 
each  owner  has  an  easement  in  the  other  tenement,  which 
the  owner  of  such  tenement  may  not  destroy  directl}--,  he 
may  by  inaction  indirectly  permit  it  to  be  destroyed,  for 


—102— 

tlie   reason,  as  given  by  the  oou^^that  neitlier  party  is 
under  any  obligation  to  maintain  iho  l>uilding  beyond  the 
period  in  vvhicii  it  would  naturally  fall  to  decay. 
Pierce  v.  Dyer,  109  Mass.,  374. 


In  Cheesborough  v.  Green  the  court  suggests  that  while 
the  owner  of  a  tenement  of  this  class,  injured  by  the  will- 
ful neglect  of  tiie  owner  of  another  tenement  to  keep  his 
tenement  in  repair,  has  no  remedy  at  law,  a  court  of 
equity  can  give  full  and  adequate  relief.  If  the  tenements 
stand  to  each  other  in  the  relation  of  dominant  and  servi- 
ent estates,  the  lower  story  of  a  house  having  an  easement 
in  the  roof  of  the  upper  story  of  shelter,  for  instance,  then 
under  the  general  rule,  in  the  absence  of  any  special 
agreement,  it  would  be  the  duty  of  the  owner  of  the  lower 
story  to  keep  the  roof  in  repair.  The  cases  of  Cheesbor- 
ough V,  Green  and  Pierce  v.  Dger  were  based  upon  the 
theory  that  it  was  the  duty  of  the  servient  estate  to  main- 
tain the  easement  for  the  benefit  of  the  dominant  estate. 
This  is  not.  the  rule. 

When  separate  tenements  of  this  class  are  created, 
the  agreement  under  which  they  are  brought  into  exist- 
ence, should  clearly  and  fully  set  forth  the  duties  of  all 
the  parties  in  every  emergency  that  can  be  foreseen. 
Whenever  parties  are  about  to  assume  property  relations 
which  are  not  well  understood  by  the  community  at  large, 
their  duties,  rights  and  obligations  under  such  relations 
should  be  fully  explained  to  them,  so  that  they  may,  if 
they  desire,  enter  into  special  covenants. 

Thorn  v.  Wilson,  110  Ind.,  325. 
Galloway  v.  Bonesteel,  65  Wis.,  70. 


LECTURE  XI. 


PARTITION    FENCES. 

The  rights  of  adjoining  owners  in  a  line,  or  partition 
fence  are  analagons  to  those  of  adjoining  owners  in  a  party 
wall,  and  may,  therefore,  properly  he  considered  in  con- 
nection with  the  latter  subject. 

At  common  law  it  was  the  duty  of  every  man  to  fence 
in  his  own  animals.  He  was  required  to  keep  them  upon 
his  own  land  at  ids  peril,  and  was.  liable  for  their  tres- 
passes upon  the  lands  of  others  whether  such  lands  were 
fenced  or  unfenced,  unless  it  was  the  duty  of  the  owner  of 
sucii  lands  to  enclose  them  and  the  trespass  was  due  to  his 
not  having  properly  performed  that  duty.  Such  duty, 
however,  is  not  a  common  law  duty. 

3  Blk.  Com.  211. 
Cooley  on  Torts,  337. 
McBride  v.  Lynd,  55  111.,  411. 
Iii(liatmi)olis  R.  R.  v.  Harter,  38  Tnd.,  5r)7. 
Wells  V.  Belli,  9  Kans.,  597. 
Webber  v.  Clossoii,  35  Me.,  20. 
Richardson  v.  Milburn,  U  Md.,  340. 
Lyons  v.  Merrick,  105  Mass.,  71. 
Avery  v.  Maxwell,  4  N.  H.,  36. 
Chambers  v.  Mathews,  18  N.  J.  L.,  368. 
Tonawanda  R.  R.  v.  Monger,  5  Denio  355. 
Gregg  V.  Gregg,  55  Pa.  St.,  227. 
Star  V.  Rokesby,  1  Salk.,  335. 


—104- 

Ricketts  v.  E.  <k  W.  India,  <Jtc.,  1:.'  K.  L.  &  E.,  520. 
Tlllett  V.  Ward,  L.  R.,  10  Q.  IJ.  J)iv.,  17. 
Detroit  v.  Beeclier,  75  Mich.,  454. 


As  was  said  in  Star  v.  Rookeshy^  "  the  law  bounds 
every  man's  property  and  is  liis  fence  "  when  a  trespass  is 
committed  it  is  not  necessary  to  show  that  the  owner  of 
the  animals  had  notice  of  their  propensity  to  roam  and  do 
mischief.  Tliis  disposition  is  so  natural  and  so  notorious 
tiiat  the  owner  is  conclusively  presumed  to  have  knowl- 
edge of  it.  And  the  fact  that  they  escaped  against  the 
owners  will  does  not  relieve  him  from  responsibility. 

Page  V.  Hollingsworth,  7  Ind.,  317. 
Gresham  v.  Taylor,  51  Ala.,  505. 
Forsythe  v.  Price,  8  Watts,  282. 


The  common  law  rule  that  the  owner  of  domestic  ani- 
mals must  keep  them  on  his  own  premises  or  be  responsi- 
ble for  their  trespass,  is  recognized  as  in  force  in  many  of 
the  states,  except  in  so  far  as  it  has  been  modified  by 
statute. 

Pittsburg  R.  R.  v.  Stuart,  71  Ind.,  500. 
Baker  v.  Robbins,  9  Kan.,  303. 
Louisville  R.  R.  v.  Ballard,  2  Mete.  Ky.,  177. 
Williams  v.  M.  C.  R.  R,  2  Mich.,  259. 
Maynard  v.  Boston,  &c.,  115  Mass.,  458. 
Lock  v.  First  Div.,  &c.,  15  Minn,,  350. 
Van  Degrift  v.  Rediker,  22  N.  J.  L.,  185. 
Giles  v.  Boston,  «&c.,  55  N.  H.,  552. 
Keenan  v.  Cavanaugh,  44  Vt.,  268. 
Harrison  v.  Brown,  5  Wis.,  27. 
Spinner  v.  N.  Y.  C.  R.  R.,  67  N.  Y.,  153. 
Sturtevant  v.  Merrill,  33  Me.,  62. 
Milligen  v.  Wehinger,  68  Pa.  St.,  235. 


—105— 

Tlio  origin  of  tliis  common  law  rule  is  found  in  the 
early  En;:;lisli  custom  ol"  coninninity  farming.  The  fields 
were  divided  into  acre  strips  and  at  first  no  one  person 
owned  two  adjoining  strips.  The  fields  thus  divided  up 
into  acre  parcels  were  not  separated  from  each  other  by 
fences  or  hedges.  As  a  result  of  this  system  the  sheep, 
cattle  or  swine,  while  grazing,  had  to  be  under  the  charge 
of  a  shepherd,  herdsman  or  swineherder,  and  at  night 
each  owner  secured  his  own  animals  upon  his  own  prem- 
ises. Had  the  courts  of  this  country  always  enforced  the 
rule  that  when  the  reason  fails  the  rule  ceases,  ttie  com- 
mon law  rule  in  regard  to  fences  would  no!  have  been  rec- 
ognized as  in  force  in  an}"  part  (jf  this  country,  because 
the  condition  of  agriculture  here  has  always  been  entirely 
different.  It  has  been  the  custom  in  this  country  from  the 
earliest  settlements,  to  inclose  lands  as  soon  as  they  were 
reclaimed  from  the  wilderness  and  to  use  the  wild  and  un- 
cultivated lands  as  comraons.  And  for  this  reason  the 
courts  of  many  of  the  states  have  held  that  this  common 
law  rule  was  not  in  force  in  this  country. 

Little  Rock,  &c.,  v.  Finley,  37  Ark.,  5G2. 

Logan  V.  Giduey,  38  Cai,,  579. 

Morris  v.  Fraker,  5  Colo.,  425. 

Studwell  V.  Ritcli,  14  Conn.,  291. 

Macon,  &c.,  v.  Lester,  30  Ga.,  911. 

Headen  v.  Rust,  38  111.,  186. 

New  Orleans,  v.  Field,  4G  Miss.,  573. 

Gorman  v.  P.  R.  R.,  2(j  Mo.,  441. 

Marietta,  &c.,  v.  Stephenson,  24  Ohio  St.,  48. 

Caniphell  v.  Bridwell,  5  Or.,  311. 

Blaine  v.  Railroad,  9  W.  Va.,  252. 

In  those  states  where  the  common  law  rule  is  not  in 
force,  uninclosed  lands  are  held  to  be  «/'/'/.?/ commons,  and 
not  fencing  is  regarded  as  a  license  on  the  part  of   the 


—106— 

owner  to  permit  cattle  at  their  own  will  to  pasture  there- 
on, but  not  as  giving  the  owner  of  such  cattle  the  right  to 
drive  his  animals  upon  such  lands  for  the  purpose  of  pas- 
turing them  there.  The  owner  of  the  land  is  still  regarded 
as  having  a  right  to  the  exclusive  use  of  his  lands,  pro- 
vided he  can  keep  his  neighbors  cattle  that  run  at  large 
from  trespassing  thereon. 

Bedden  v.  Clark,  7G  III., 338. 
Delany  v.  Erickson,  11  Neb.  5.33. 
Hallock  V.  Hughes,  42  la  ,  516. 
Little  V,  McGuire,  38  la.,  560. 
Little  V.  McGuire,  43  la.,  447. 

As  an  illustration  of  the  maxim  "that  when  the  rea- 
son for  a  rule  fails  the  rule  fails,"  the  courts  of  Colorado 
hold  that  the  owner  of  lands  must  fence  against  cattle, 
but  need  not  fence  against  sheep,  because  cattle  are  per- 
mitted to  run  at  large  unattended,  while  sheep,  although 
they  run  at  large,  are  under  the  charge  of  a  shepherd. 

Morris  v.  Fraker,  5  Colo.,  425. 
Willard  v.  Mathesus,  7  Colo.,  76. 

There  are  two  ways  in  which  the  rule  of  the  common 
law  in  regard  to  partition  fences  may  be  changed.  The 
parties  may  themselves,  by  agreement,  or  prescription 
obligate  themselves  to  maintain  partition  fences,  or  the 
statute  may  provide  for  such  fences.' 

Star  v.  Rookesby,  1  Salk.,  335. 

Binney  v.  Proprietors,  5  Pick.,  305. 

Adams  v.  Van  Alstyne,  25  N.  Y.,  232. 


And  where  an  obligation  exists  to  maintain  a  partition 
fence  of  a  particular  description,  it  is  a  general  rule  that 


—107— 

when  a  proprietor  whose  duty  il  is  to  niaiiitiiiii  siicii  fence, 
neglects  to  perform  that  duty,  and  cattle  trespass  upon 
his  lands  without  any  fault  on  the  part  of  tlie  owner  of 
such  cattle,  the  owner  is  not  lialde. 

Moouey  v.  Maynurd,  1  Vt.,  470. 
Hiue  V.  Muuson,  32  Conu.,  210. 
Westgate  v,  Carr,  4.'5  Fll.,  450. 
Mann  v.  Williamson,  70  i\Io.,  661. 
Cowles  V,  Balzar,  47  Barb.,  5G2. 
Gregg  V.  Gregg,  55  Pa.  St.,  227. 
Hurd  V.  R.  &  B.  R.  R.,  25  Vt.,  116. 


It  seldom  happens  that  in  tiiis  country  a  partition 
fence  owes  its  origin  to  either  covenant  or  prescription 
In  nearly  every  state  tiie  subject  is  regulated  by  statute. 
As  early  as  1785  the  commonwealth  of  Massachusetts 
passed  a  general  statute  upon  the  subject  of  building  and 
maintaining  division  fences,  the  provisions  of  wiiich  have 
been  closely  followed  in  other  states  and  have  become  the 
basis  of  the  statute  law  in  this  country  upon  that  subject. 
The  statute  of  tiiis  state— Howell,  Chap.  21 — defines  what 
shall  be  a  legal  and  sufficient  division  fence,  and  how  the 
proportion,  or  part,  that  each  adjoining  proprietor  shall 
Iniild  and  maintain  shall  be  ascertained  and  determ- 
ined. This  is  to  be  done  by  the  parties  themselves,  or, 
by  fence  viewers.  Under  similar  statutes  it  has  been  held 
that  a  verbal  agreement  between  the  parties  is  binding 
upon  themselves,  but  does  not  run  witli  tiie  land  and  is 
not,  therefore,  binding  upon  their  grantees. 

Tupper  V.  Clark  43  Vt.,  200. 
Guyer  v.  Stratton,  2!)  Conn.,  421. 
Pitzner  v.  Sliitiiiiclv,  41  Wis.,  67G. 
Glidden  v.  Towle,  31  N.  H.,  147. 


—108— 

WluMi  the  lands  uro  unimproved  the  staliile  does  not 
apply,  and  in  case  one  of  the  projuietors  desires  to  improve 
his  lands,  he  must  inclose  them  at  liis  own  expense. 

Stafford  v.  lnj?erHoll,  .{  Hill,  38. 
Aylesworth  v.  Herriugton,  17  Mich.,  427. 
Bechtel  v.  Neilson,  19  Wis.,  r^d. 
Hazard  v.  Wolfniiu,  31  Wis.,  104. 


The  statute  is  merely  directory,  points  out  simply  a 
method  by  which  division  fences  may  be  established  and 
maintained,  and  is  not  mandatory.  Adjoining  proprietors 
may,  if  they  choose,  agree  not  to  maintain  division  fences, 
and  in  such  a  case  they  relieve  themselves  from  the  pro- 
visions of  the  statutes  and  subject  themselves  to  the  rule 
of  the  common  law. 

Johnson  v.  Wing,  3  Mich.,  103. 
Aylesworth  v.  I^errington,  17  Mich.,  417. 
Milligan  v.  Wehinger,  68  Pa.  St.,  235. 
Baker  v.  Robbiiis,  9  Kan.,  303. 
Moore,  v.  Levert,  24  Ala.  130. 
Tumlin  v.  Parrott,  Ga.,  1889. 


One,  ordinarilj',  is  not  bound  to  fence  against  cattle 
not  ri-ihtfully  on  adjoining  premises,  and  therefore  if  cat- 
tle which  are  trespassing  break  into  an  inclosure  the 
owner  is  liable,  although  the  division  fences  of  such  in- 
closure are  insulFicient. 

Wilder  v.  Wilder.  38  Vt.  678. 
Rust  V.  Low,  t!  Mass.,  90. 
Lyon  v.  Merrick,  lOo  Mass.  71. 


If,  however,  cattle  are  by  statute  permitted  to  run  at 


—109— 

larj^o,  llu'  above  ■rule  docs  not  apply,  and  in  that,  caso,  in 
order  to  enable  a  land  owner  to  rcfdver,  he  must  maintain 
a  lawful  fence. 

Westgate  v.  Carr,  43  111.,  450. 
Frazior  v.  Nortinu.s,  34  la.,  S2. 


When  tliere  is  a  division  fence  which  both  i)arties  are 
bound  to  maintain,  and  neither  party  is  bound  to  main- 
tain any  specilied  part,  the  common  law  rule  prevails,  and 
each  is  liable  for  the  trespass  of  his  cattle  due  to  the  de- 
fects in  such  fence,  for  the  reason  tliat  it  was  his  duty  to 
keep  the  whole  fence  in  rei>air,  or  rather  to  keep  his  cattle 
ui>on  his  own  premises. 

Kn(»x  V.  Tucker,  48  Me.,  37.}. 
Aylesworlh  v.  Herrington,  17  Mich.,  417. 

In  order  that  either  party  may  relieve  himself  from 
the  responsibility  of  keeping  the  whole  of  such  fence  in 
repair,  there  must  be  a  legal  division  and  the  part  desig- 
nated, whicii  each  must  maintain.  On  the  other  hand, 
when  the  entire  fence  is  owned  by  one  proprietor  and  he 
is  under  no  obligation,  by  agreement  or  statute,  to  keep  it 
in  repair,  he  can  maintain  tresi)ass,  although  occasioned 
l)y  defi'cts  in  such  fence. 

McJJride  v.  Lyu<l,  ■')')  Iiul..  411. 


When,  however,  thi'  duty  of  maintaining  a  division 

fence  has  been  divided  and  a  trespass  occurs  through  a 

defect  in  a  part  of  the  fence  which  the  plaintilfis  recpiired 

to  maintain,  he  cannot  recover  damages  for  the  trespass. 

East  v.  Cain,  l!»  Midi.    173. 


—110— 

WHAT    CONSTrn'TKS    A    THKSI'ASS, 

Kvcrv  wn)ii;xl'iil  (Mihy  of  oiu^'s  caftlo  upon  llu'  lands 
of  aiiollior  ('((Mslitiik's  a  trespass,  and  imports  daiiia;;es, 
and  il'  no  acltial  damaj^es  are  shown,  nominal  damages 
may  be  recovered. 

Pierce  v.  Hosuilt,  (iU  limb.,  34o. 
McMannus  v.  Fiimn,  4  la..  283. 


To  constitute  a  trespass  it  is  not  necessary  that  tlie 
animal  should  step  across  the  boundary  and  tread  upon 
another's  land.  lie  may  stand  upon  his  owner's  land  and 
commit  a  trespass  l)y  kicking  or  biting  through  or  over  the 
division  fence. 

p:ilis  V.  Loftus  Iron  Co.,  L.  R.,  10  C.  P.,  1<». 
Petti t  V.  May,  34  Wis.,  66(j. 


Not  every  entry,  however,  by  an  animal  upon  the 
lands  of  another  will  constitute  a  trespass.  Tne  owner  of 
lands  adjoining  a  highway  is  not  obliged  to  fence  against 
animals  wrongfully  in  the  highway. 

Cliambers  v.  Mathew.s,  18  N.  J.  L.,  368. 
Dovastou  V.  Payne,  2  H.  Blk.,  528. 


But  since  the  public  have  the  right  to  use  the  high- 
way to  drive  animals  from  one  place  to  another,  the  owner 
of  animals  so  driven  is  only  reijuired  to  use  reasonable  care 
to  prevent  thom  from  trespassing  upon  adjoining  lands, 
and  he  is  not  liable  if  they  casually  stray  from  the  road  as 
they  are  driven  along,  if  he  makes  reasonable  efforts  to 
capture  them  and  prevent  their  doing  damage.     It  is  held 


— Ill— 

tliiit  such  «lam:ii;i'  is   an    iin-iilciit   iliir  to  tlu'  -iiualioii  of 
the  laiul,  for  wliiili  the  owner  has  no  rciiUMly. 

HurtfnnI  v.  UriKly.  Ill  Mass.,  400. 
McDoiiuM  V.  PittsM.I.l,  .tc.  ITj  Mhhh..  Wi. 
Tillftt  V.  Wani.  L.  U.  lo  Q.  B.  Dv.,  17. 
Cool  V.  Cromniet,  1.*}  Me.,  2Ji(). 
Ooddwyn  v.  Cheveley,  I  H.  &  N,,  031. 


LECTURE  XII. 


WATERS. 

Tlie  law  does  not,  with  certain  exceptions,  recognize 
a  right  of  private  ownershij)  in  water  itself.  One  has  no 
title  to  the  water  of  a  stream  flowing  across  his  land;  he 
possesses  merely  a  right  to  use  the  water  in  a  manner  that 
shall  not  interfere  with  the  right  of  user  possessed  by  other 
persons  having  similar  interests  in  such  water  course. 

In  considering  the  legal  rules  governing  the  right  to 
use  water,  it  is  desirable  to  classify  waters  and  to  consider 
separately  the  rules  applicable  to  each  class. 

Water  mingled  with  the  soil,  or  percolating  through 
it  in  no  well-defined  channel,  is  called  surface  water. 

AVhen  water,  by  percolating  through  the  soil  or  other- 
wise, has  collected  into  and  formed  a  considerable  body  of 
water,  it  is  called  a  pond  or  lake. 

When  water  flows  in  a  particular  channel  between 
well-defined  banks,  it  is  called  a  water  course  or  river. 

AVhen  such  stream  is  beneath  the  surface  of  the  soil, 
it  is  called  a  subterranean  water  course,  and  the  point 
where  it  comes  to  the  surface  of  the  ground,  a  spring. 

When  a  pond,  lake  or  spring  is  situated  wholly  upon 
a  persons  own  land,  and  such  pond  or  spring  has  no  outlet, 
or  one  that  is  wholly  upon  such  person's  land,  the  water 
of  such  pond  or  spring  is  practically  the  property  of  such 
land  owner,  for  the  reason  that  no  other  person  possesses 


— lln— 

the  riji;ht  to  uso  such  walcr,  or  iiiiy  port  ion  of  it.  The 
ownor  may,  tlieivrorc.  use  I  he  whoh'  ol"  the  wafer  in  such 
pond  or  sprinj;,  or  he  may  convert  the  pond  oi-  sprinir  in- 
to dry  land. 

If  sueh  pond  or  sprinir  lias  a  natural  outlet  which 
crosses  the  lands  of  an  adjoining;  proprietor,  such  proprie- 
tor has  the  rifiht  to  have  such  outlet  maintained  in  its  nat- 
ural condition,  and  the  use  of  the  water  in  such  sprinir  and 
pond,  by  the  owner  of  the  land  upon  which  they  are 
located,  is  "governed  hy  the  same  rules  which  govern  the 
use  of  water  in  streams  and  rivers  by  adjoininjj;  ])roprie- 
tors.  These  pr()[)ositions,  and  the  authorities  supporting 
them,  will  l)e  commented  on  hereafter. 

RIGHTS  IN  SURFACE  WATER. 

So  long  as  the  surface  ol'  fhc  land  is  left  in  its  natural 
condition,  water  from  rain-fall  an<i  the  melting  of  snow 
and  ice  Hows  over  the  surface  or  percolates  through  the 
soil  until  it  reaches  a  natural  water  course.  We  will  first 
consider  the  rights  of  adjacent  land  owners  to  use  and  dis- 
pose of  this  water  before  it  reaches  a  natural  water  course, 
during  the  time  it  is  known  as  surface  water. 

It  is  a  general  rule  that  the  owner  of  land  has  a  right 
to  get  rid  of  surface  water  in  order  that  he  may  use  and 
enjoy  such  land.  It  frcMpiently  happens  that  the  land  is 
absolutely  worthless  until  it  is  imi)roved  by  drainage,  but 
how  the  owner  may  riil  himself  of  this  "common  enemy  " 
is  a  question  answered  in  one  way  by  one  court,  an<l  in 
quite  another  way  by  another  court. 

The  better  rule  seems  to  be  that  adjoining  owners  of 
land  must  iniprove  their  lands  with  reference  to  their  nat- 
ural situation  and  the  probable  elfecl  upon  lands  l)elong- 
ing  to  their  neighbors;  and  that  the  owner  of  lower  land 
may  not  prevent  water  from  higher  land  flowing  ui)on,  or 


—114— 

percolating  through  the  soil  of  his  land,  and  that  if  he 
desires  to  improve  such  lower  land,  he  must  not  damn  up 
the  water  ilowing  from  a  higher  level.  On  the  other 
hand,  the  owner  of  the  higher  land  must  not  by  artificial 
means  increase  the  How  of  water  upon  the  lower  land  to 
the  damage  of  the  other  proprietor. 

Martin  v.  Riddle,  2fi  Pa.  St.,  41').'' 

KuufFman  v.  Griesemer,  26  Pa.  St.,  AOlf 

Gillham  v.  Madison,  etc.,  4(»  111.,  484, 

Gormley  v.  Sanford,  52  111.,  158. 

Oj?burn  v.  Connor,  46  Cal.,  .S46. 

Hays  V.  Hays,  in  La.,  351. 

Butler  V.  Peck,  16  Ohio  St.,  334.   ^ 

Launiier  v.  Francis,  26  Mo.,  181. 

Conklin  v.  Boyd,  46  Mich.,  56.^ 

Earl  V.  DeHart,  12  N.  J.  Eq.,  280. 

Cagle  V.  Parker,  97  N.  C,  271. 

Railroad  v.  Marley,  25  Neb.,  138. 

Olsen  V.  Railroad,  38  Minn.,  419. 


It  has  been  held,  however,  and  there  is  a  goodly 
array  of  authorities  sustaining  that  view,  that  there  is  no 
legal  right  appertaining  to  land  to  have  surface  water 
discharged  over  contiguous  land,  no  matter  what  the  con- 
formation of  the  surface  may  be,  and  that  the  right  to 
receive  and  discharge  surface  water  has  no  legal  existence, 
except  from  a  grant,  express  or  implied. 

Bowleby  v.  Speer,  31  N.  J.  L.,  351. 
Parks  V.  Newburyport,  10  Gray.,  28. 
Dickenson  v.  Worcester,  7  Allen,  19. 
Gaiinow  v.  Harj^'adon,  10  Allen,  106. 
Morrison  v.  Biicksport,  67  Me.,  353. 
Wheatley  v.  Baugh,  2-1  Pa.  St.,  528. 


Bark  ley  v.  Wilcox,  86  N.  Y.,  140.^ 
Pettigrew  v.  Evansville,  25  Wis.,  223. 


—115— 

Thr  rule  adopted  in  New  Hampshire  gives  the  owner 
of  land  tiic  rijiht,  in  the  use  and  improvciiieni  of  his  land, 
to  make  roa^oiiahle  niodilicalions  in  the  Ihnv  of  surface 
and  iicrcolat iwj;  waters. 

.Swft  V.  Cutis,  oO  N.  H.,  4:51». 

Biissett  V.  SaliHbury,  etc.,  4;{  X.  H.,  -'iiiU. 


It  is  a  ixenoral  rule,  thai  in  m'tlinj:;  rid  of  surface 
watci,  lonncd  on  tlic  land  drained,  the  owner  must  con- 
struct liis  drains  wifii  reference  to  the  initural  How  of  the 
water,  and  if  he  increases  the  natural  How  of  the  water, 
he  is  liable  for  the  damage  caused  thereby. 

Pettigrew  v.  Evansville,  2o  Wis.,  223. 
Noonaii  v.  City  of  Albany,  79  X.  Y.,  470. 
Miller  v.  Laubacii,  47  Pa.  St.,  I'A. 
Cubit  V.  O'Dett,  51  Mich.,  347. 
WatHe  V.  X.  Y.  C  R.  K.,  53  N.  Y.,  11. 


These  questions  sometimes  arise  when  the  public 
authorities  construct  drains  for  tiie  benefit  of  iii<:;hways  or 
streets.  It  is  well  setthMl  that  i)idjlic  auliiorities  have  no 
rigid  to  cid  drains  that  will  injure  private  persons. 

Cubit  V.  O'Dett,  51  :\rich.,  347. 

VanPelt  v.  City  of  Davenport,  42  la.,  30S. 

Ashley  v.  Port  Huron,  35  Mieli^  29(5./' 

S.  C.  :!(),  Am.  Rep.,  629,  note.  ^ 

Ryehlicke  v.  .St.  Ijouis,  (Mo.),  4  I..  R.  A.,  5!»4. 


A  land  owner,  however,  in  draining  his  land  has  a 
right  to  construct  whatever  drains  are  necessary,  open  or 
covered,  which  discharge  into  natural  channels,  although 
he  thereby  increases  the  natural  tlow  of  tjie  water  at  cer- 
tain times  and  seasons. 


— IIG— 

/ 

Martin  V.  Kid.lU',  20  Pu.  St.,  410.  ' 

Wood  V.  Waiid,  ;;  Kxch.,  748. 
Williiiius  V.  (}ale,  ,'{  JI.  &  J.,  2.'?!. 
IJellowH  V.  Sackett,  15  IJarb.,  90,  lOU. 

And  it  is  also  llie  }j;eneral  rule,  that  the  url)an  owiut 
may  impfDVi'  his  land  l)y  liliiii.ii  in  the  same,  even  if 
thereby  lie  (lanses  water  lo  How  and  remain  npon  otlier 
lands  to  their  dama<;e. 

Flog}?  V.  Worcester,  13  Gray,  001. 
Ut-ntz  V.  Armstrong,  8  W.  &  S.  (Pa.),  40. 
Bowlesby  v.  Speer,  31  N.  J.  L.,  351. 


A  contrary  rnle,  however,  prevails  in  Illinois.  The 
nrban  owner  is  not  permitted  to  till  in  low  land  and  tinis 
throw  surface  water  upon  the  lands  of  an  ailjoinin^  pro- 
prietor. 

Gorinley  v.  Saiifonl,  Wl  111  ,  I'jS. 
Gillham  v.  Madison,  etc.,  49  111.,  484. 


While  there  is  considerable  contlict  of  authority  upon 
this  subject,  nearly  all  the  courts  are  agreed,  that  if  the 
acts  complained  of  and  which  have  caused  the  damage 
were  not  done  in  good  faith  by  the  defendant,  and  for  the 
purpose  of  improving  his  property,  he  will  be  held  liable. 
He  is  not  permitted  wantonly  and  miscluevonsly  to  tlood 
his  neighl)or\s  land. 

This  contlict  in  the  decisiojis  of  this  country  upon 
his  suljject,  is  due  in  part  to  the  fact  that  some  of  tlie 
states  have  adoi)ted  the  rule  of  the  civil  law,  that  the 
upper  tenement  has  an  ea<ennMit  of  drainage  in  the  lower 
tenement,  while  others  follow  the  common  law  rule  that 


—117— 

surface   water    ininjj;kMl    with    the    soil    and   percolating 
tlirou;;li  it,  is  in  the  eye  of  the  law  real  estate. 

In  BarHci/ r.  HV/m/-,  S«;  N.  Y.,  140,  these  two  rules 
arc  discussed,  and  t\\v  slal('>  that  have  adoptiMl  ihc  one  <>r 
the  other  pointed  out. 

It  is  due  also  in   part   to   the   tact   that  some   of  the 
courts  have  not  always  recognized  and  followed  the  rules 
whicli  determine  the  lial>ility  of  a  land  owner  when  dam- 
ages result  from  a  natural  use  of  the  land,  and  when  thcN^ 
arise  from  an  artificial  use.  >^ 

While  one  may  api)ropriate  and  use,  as  we  ha^^en, 
all  the  surface  water  to  the  damage  of  a-  thii^^'rson 
because  such  use  and  appropriation's  a  natural  use  of  his 
land,  he  may  not,  on  the  other  li^d,  add  any  foul  or  nox- 
ious element  to  the  surface  w^R  and  then  permit  it  to 
<'v;cape  from  his  premises  upon  those  of  his  neighbor. 

Mears  v.  Dole,  135  Mass.,  508. 

IJal!  V.  Nye,  9!)  Mass.,  582. 

Pixley  V.  Clark,  35  N.  Y.,  520. 

Ballard  v.  Toinliiisoii,  L.  R.,  29  Ch.  D.,  Ilo. 

Sanderson  v.  Peiiu,  II.'J  Pa.  St.,  120. 


SUBTERRANEAN    WATERS. 

It  is  well  settled  that  the  right  to  a  natural  stream  of 
water  on  the  surface  belongs  to  the  proprietor  of  the  ad- 
joining lands,  as  a  natural  incident  to  the  right  to  the 
soil  it.self,  and  that  he  is  entitled  to  the  benelit  of  it  as  he 
is  to  all  the  other  natural  rights  of  the  soil  of  which  he  is 
the  owner.  lie  has  the  right  to  have  it  come  to  him  in 
its  natural  state,  both  in  (luantity,  quality  and  How,  and 
to  pass  from  his  land  without  obstruction.  His  rights  to 
sucii  a  stream  in  no  way  depend  ui)on  grant  or  iirescrij)- 
tion. 

9 


—118— 

MuHoii  V.  Hill,  r,  H.  it  A(i..  1. 

TyltT  V.  Wilkinson,  I  Nfason,  '.V.n,  4<M). 


And  tlic  rijilit  to  a  natural  stream  ll()\vin<i;  in  a  natural 
channel  is  not  confmod  to  streams  upon  the  surface  of  the 
land,  but  extends  as  well  to  streams  llowin-:;  in  a  known 
and  definite  channel  beneath  the  surface. 

Wood  V.  Waud,  3  Kxch.,  748. 
Wbeatley  v.  Baugh,  25  Pa.  St.,  528. 


A  watercourse  is  defined  to  be  "a  stream  of  water 
usually  fiowing  in  a  definite  channel  having  a  bed  and 
banks,  and  usually  disQJiarging  itself  into  some  other 
stream  or  body  of  water."  To  constitute  a  water  course 
the  size  of  the  stream  is  not  important.  It  may  be  very 
small  and  the  flow  of  the  water  need  not  be  constant ;  but 
whether  constant  or  not,  it  must  be  something  more  than 
the  mere  surface  drainage  of  a  tract  oi"  land  occasioned  by 
freshets  or  other  extraordinary  causes.  It  is  often  a  ques- 
tion of  fact  for  the  jury  to  find  whether  in  a  given  case,  a 
water  course  exists  or  not. 

Luther  v.  Winnisiinmet  Co.,  9  Cush.,  171. 

Duddeu  v.  (tuardians  of  Poor,  etc.,  1   Hurist.  &  N.,  G27. 


While  one  may  not,  to  the  prejudice  of  the  rights  of 
another,  interfere  with  a  water  course  on  the  surface,  or 
one  which  is  known  to  exist  beneath  the  surface,  still, 
since  the  owner  of  land  has  the  right  to  the  use  and  en- 
joyment of  such  land  below  the  surface,  if  in  the  exercise 
of  his  rights,  and  for  the  purpose  of  enjoying  his  premises, 
he  makes  excavations  and  thus  cuts  olf,  diverts  or  destroys, 
the  use  of  an  underground  spring  or  unknown  channel  of 


— 119-- 

water,  w  InCli  lia--  no  kiinwii  or  definite  course,  hut  wliicli, 
in  fact,  lias  been  accuslouuMl  to  make  tlirouirli  the  ^^rouiid 
and  llow  into  the  hind  of  his  n('ij:;hh(jr  heh)\v  the  surface, 
he  is  not  liahh;  for  the  stoi)paf:;e  or  diversion  of  such 
water. 

Frnzior  v.  Hrowii,  12  Ohio  St.,  2t»4,  .304. 
Dfilii  V.  Youinaiis,  oO  Barb.,  ."{Ki. 
8.  C,  4,5  N.  Y.,  m2. 
Acton  V.  Blundell,  12  M.  .V  W.,  324.^ 


A  distinction  is  made  between  a  water  course  and  a 
well  or  spriiii:;  not  rising;  to  the  surface  and  haviii;:;  an 
overllow.  The  rule  in  regard  to  the  latter  is  as  stated 
above,  that  if  one  in  the  rifrhtful  u.se  and  enjoyment  of 
his  premises  cuts  oil"  the  hidden  source  of  supply  he  is  not 
liable.  Thus  it  was  licld  that  when  one  liad  j^ranted  to 
another  the  rijiht  to  box  up  a  sprin>i  and  lay  a  pii)e  in  the 
grantor's  land  for  the  purpose  of  conveying  water  from 
the  spring  to  the  grantee's  premises,  the  grantor  was  not 
liable  lor  damages  for  digging  a  well  twenty  seven  feet 
distant  from  the  spring  on  higher  ground  which  had  the 
elfect  to  lower  the  water  in  the  spring  and  destroy  its 
value  to  the  grantee. 

Tiliss  V.  fJreeley,  45  N.  Y.,  (>7I. 
Jloiith  V.  Driscoll,  20  Conu.,  532. 

When  a  spring  comes  to  the  surface  and  forms  a  rivu- 
let or  stream  which  Hows  on  the  surface  through  the  lands 
of  an  adjacent  owner,  such  adjacent  owner  is  entitled  to 
the  usufruct  of  the  water  in  such  stream  for  all  reasonable 
purposes,  to  drink.  !(•  waier  his  cattle  or  drive  his  ma- 
chinery, according  to  the  size  and  situation  of  the  stream. 
The  owner  of  the  land  ui)on  which   the   spriiiir  comes  to 


—120— 

I  lie  siii-nice  first  msiy  not  divert  the  water  from  it,  although 
it  is  so  near  the  boundary  line  that  tiie  water  does  not 
form    for  itself  a  defined  ciiannel   belore  reaching  such 

!ioiilid:irv. 

Eunor  v.  Baucree,  2  GifF. ,  410, 
Dickinson  v.  Canal  Co.,  7  Exch.,  Zs2,  301. 


Hut  one  may  not  in  digjjcing  in  his  own  land  divert 
the  water  that  loruis  part  of  a  surface  stream.  It  i-^  held 
that  if  the  owner  cannot  utilize  the  underground  water 
without  destroying  the  water  in  a  surface  channel  he 
must  not  do  so  at  all. 

Delhi  V.  Youmans,  45  N.  Y.,  362.'^ 

Grand  Junction  Can.  Co.  v.  Sbugar,  6  L.  R.  Ch.,  483. 

The  above  rule  has  been  questioned,  and  it  is  some- 
what difficult  to  harmonize  it  with  the  following  rule,  viz.: 

One  may  sink  a  well  upon  his  own  land  and  collect 
water  which  percolates  through  the  soil  and  which  other- 
wise would  reach  a  water  course  and  may  thus  diminish 
the  flow  of  such  water  course  to  the  detriment  of  a 
riparian  owner,  and  that,  while  water  is  mixed  with  the 
soil,  is  not  collected  into  definite  and  well-defined  chan- 
nels and  is  merely  oozing  through  the  soil,  the  owner  of 
the  land  may  collect  it  and  prevent  its  reaching  the  land 
of  his  neighbor. 

Chasemore  v.  Richards,  7  H.  L.,  Cas.,  349, 
Action  V.  Blundel,  12  M.  &  W.,  324, 


Questions  as  to  rights  in  subterranean  waters  fre- 
quently arise  between  adjacent  mine  owners,  water  under 
such  circumstances  having  been  termed  a  common  enemy. 


—121— 

The  <;eiieral  rule  is  thai  a  iniiic  owner  may  allow  (he 
wah'r  which  collects  in  his  iniiu',  from  percohitiuij;  through 
the  soil,  to  llow  into  an  adjoining:;  mine  if  that  result  is 
accomplished  fntiii  working;  the  luinc  in  a  proper  ami  in 
(ho  usual  method,  lie  must  not  use  any  artidcial  mcaus, 
iiowevcr,  to  accouiplish  that  result,  lie  would  not,  lor 
instance,  be  permitted  to  raise  the  water  hy  (he  use  of 
machinery  to  a  hi;:;her  level  in  his  mine,  and  from  such  a 
level  peruiK  it  to  (low  into  another's  mine 
*5mltlj  V.  Kendiielv,  7  C.  B.,  51o. 


AVe  have  called  your  allciitioii  to  tiie  fact  that  the 
puri)()sc  and  intent  with  which  the  act  was  done  had 
much  to  do  in  determinini;  (he  liabilKy  of  one  whose  acts 
have  interfered  with  the  rijiht  of  another  (o  (he  enjoy- 
ment of  a  well  or  spring.  We  return  to  liie  subject  for 
the  purpose  of  calling  your  attention  to  a  contlict  of 
authority  upon  this  (iuesdon. 

The  rule  of  (he  civil  law  may  be  translated  into 
English  as  follows:  "  If  a  man  digs  a  well  jn  his  own 
held,  and  (hereby  drains  his  neighl)ors,  he  may  do  so 
unless  he  does  it  maliciously." 

Acton  V.  Bluiulell,  12  M.  &  \V.,  324. 


A  man's  sense  of  natural  justice  ai»proves  this  rule. 
No  one  should  be  permittetl  wantonly  and  gratuitously  (o 
injure  his  neighbor,  and  the  fact  that  the  act  complaine(l 
of  was  one  which  he  was  authorized  to  do,  having  a  legiti- 
mate object  in  view,  should  not  change  the  rule.  If  the 
object  and  sole  purpose  of  the  act  was  to  injure  another, 
he  should  be  compelled  to  make  such  injury  good,  lint  a 
dillerent  rule  has  been  adopted  by  some  of  the  courts. 


—122— 

It  is  said,  if  one  liml  authority  to  do  the  acts  com- 
plained of,  and  acted  within  that  authority,  ho  is  not  a 
lr('sj)asser,  hocausc  his  motives  or  purposes  with  rej^ard  to 
the  plaintiir  were  unkind  or  malicious. 

Bonjiuiiin  v.  Wlu'elor,  4  (tray,  414. 
Clmttk'Id  V.  Wilson,  2.S  Vt.,  49. 


Contra, 

Burke  v.  Smith,  69  Mich.,  380. 
llojitii  V.  Driscoll,  2(1  Conn.,  533. 
Wlieatley  v.  IJaugli,  2-5  Pa.  St.,  528. 
Greenleaf  V.  Francis,  18  Pick.,  117. 
Panton  v.  Holland,  17  Johns,  92. 


When  one  does  an  act  upon  the  land  of  another, 
whicii  he  is  not  authorized  to  do,  and  thereby  injures  that 
other  in  the  use  of  a  well  or  spring  fed  by  surface  water 
he  is  liable. 

Parker  v.  Boston  &  M.  R.  R.,  3  Cush.,  107. 


While  the  general  principle  stated  above  is  unques- 
tionably correct,  it  may  be  doubted  whether  the  principle 
was  applicable  to  the  facts  in  the  case  referred  to.     See. 
New  Albany  R.  R.  v.  PetersoD,  14  Ind.,  112. 


One  may  not  collect  water  in  a  reservoir  upon  his 
own  lands  and  allow  it  to  escape  and  percolate  through 
the  soil  to  the  injury  of  the  land  of  his  neighbor. 

Wilson  V.  New  Bedford,  108  Mass.,  261. 
RylandH  v.  P^letcher,  L.  R.,  3  H.  L.,  3.30. 


—V2^- 

Thert'  aro  sovcial  dicta  in  llu-  »:i<«'-«  ({((mI  that  a  rij^lit 
to  the  iis«'  of  siihtcirancan  \vat»M's  iniirlit  lie  aiMjiiin-tl  Ijy 
prcscriiilioiH,  liiit  it  i>  now  Wfll  si'tlU'tl  tlmt  it  caniiot  l»e 
tliiK  ac(jiiii(M|. 

CuHemon'  v.  Uicluinls,  7  H.  !>  ,  Ciis  ,  M'K 


KHi!ITS    OF    KAVKS    KHII'. 

No  out-  may  huilil  liis  lious.;  so  near  llic  line  ol"  liis 
nt>ij:hl)or's  land  that  the  eaves  will  project  over;  such  a 
projection  will  constitnte  a  trespass.  Neither  may  he 
Itnild  his  honso  and  the  eaves  wholly  on  his  own  i)remises 
in  such  a  manner  that  the  drip  of  the  eaves  will  fall  on 
his  nei|ihl)or's  land. 

If.  however,  the  <lrip  of  the  eaves  fall  npon  an  a<lja- 
cent  owners  land,  and  continnes  for  a  siillicient  leni^th  of 
time,  the  owni'r  of  the  house  acquires  a  rij^hf  to  have  it 
continue  hy  prescription. 

Curbri-y  v.  Willis,  7  AiU-n,  ;ir,4. 

Where  such  an  easenient  exists  either  by  j;rant  or 
prescription,  the  owiipr  of  the  dominant  estate  may  not 
increase  the  l)urilen  of  the  servitude.  He  will  not  be 
permitted  to  in<-rease  the  heii^ht  of  his  buildinir,  or  collect 
the  drip  and  discharge  it  all   at  one   point  l)y  means  of  a 

spout   or    L'Utlel'. 

Hi-y Ileitis  V.  Chirk,  l!  \M.  Uayiu.,  1309. 


LECTURE  XIII. 


WATKH   COURSES. 

A  water  course  usually  has  a  continuous  flow  of  water, 
but  such  continuous  flow  is  not  essential  to  constitute  a 
water  course.  The  flow  may  be  intermittent,  or  periodi- 
cal, provided  it  is  somethinfi;  more  than  the  surface  drain- 
age from  rain  fall,  or  mere  surface  water.  Althoujrh  the 
bed  of  the  stream  is  dry  most  of  the  time,  the  riparian 
owner  has  the  right  to  have  it  maintained  in  its  natural 
condition,  that  he  may  have  the  use  of  the  water  when  it 
does  flow  and  the  channel  as  a  drain  at  all  times. 

Ferris  v.  Wellborn,  64  Miss.,  29. 
Taylor  v.  Fickas,  64  Ind.,  167. 
Schlichter  v.  Phillipy,  67  Ind.,  1201. 
Eulrich  v.  Ricker,  37  Wis.,  226. 
Eulrich  v.  Kicker,  41  Wis.,  318. 
liobison  v.  Shanks,  US  Ind.,  126. 
West  V.  Taylor,  16  Or.,  1<>j. 
Moore  v.  Railroad,  7.")  Iowa,  263. 


Water  courses  are  diviiled  into  two  classes,  navigable 
and  non  navi-iable.  Formerly  navigable  rivers  were  de- 
fined to  be  rivers  in  which  the  tide  ebbed  and  flowed, 
indeed  the  term  was  re-tricted  f<>  so  much- of  such  rivers 


—125— 

as  wore  ellbctcHl   Ity  llic  liilc:    Now   tin-  term   iiavi^iablo 
waters  means, 

1.  All  tide  waters. 

2.  Such  tide  waters  as  can  Ix'  used  for  tin-  i)iir]i<»se  of 
commercial  navigation. 

.'>.  Any  \vater  which  can  be  made  available  for  the 
transj>ortalion  of  merchandise  by  vessel,  rafts  or  any  other 
means. 

('I'liiUKiMWfiiltli  V.  Vini'trit,  108  Maus.,  441. 
Hlckok  V.  Hine,  2;J  Oliio  St.,  523. 


We  shall  recur  to  the  distinction  between  navigable 
and  non-navigable  streams  hereafter. 

Streams  are  often  the  natural  boundary  of  private 
lanils.  In  those  streams  where  the  tide  ebbs  and  Hows 
the  soil  beneath  the  water  belongs  to  the  state. 

Rex  V.  Tiniity  House,  1  Sid.,  SO. 
Trasy  v.  Norich  R.  R.,  39  Conn.,  382. 

A  riparian  owner  whose  land  is  bounded  upon  a  non- 
navigable  water  course  owns  to  the  thread  of  the  stream, 
and  this  is  true  whether  the  grant  be  made  by  a  private 
person  or  the  state. 

JciiniiiKs  e.\  pare  6  Cow.  51vS-536  note. 

The  thread  of  the  stream  is  usually  regarded  as  the 
center  of  the  stream,  foun'l  \vith(»iil  icLranl  (o  tlie  llow  of 
water. 

Knight  V.  Wilder,  li  CuhIi  ,  in<,». 

If  the  channel  of  the  river  is  divided  equally  by  a 


—150— 

niiddlo  j:;romi(l  or  island,  then  the  Ixmiidary  line  of  each 
l)n)i)rio(or  is  a  liiu'  riiiniiii;;  parallel  with  the  course  of 
the  river  and  dividin":;  the  island  into  two  etiiial  i)arts:  If 
the  channel  is  divided  uneiiually,  ( hen  the  smaller  chan- 
nel is  ij:;iiore(l  and  the  houndary  line  is  the  thread  of  the 
main  channel. 

Ciooker  v.  BroKg,  10  Wend.,  2(>0. 

Trustees  v.  Dickinson,  9  Cusb.,  o44. 

Watson  V.  Peters,  26  Mich.,  50S. 

Fletcher  v.  Tliunder  Bay  Boom  Co.,  51  Mich.,  277. 

If  such  middle  ground  is  owned  by  a  third  person, 
such  person  is  a  riparian  owner  as  to  each  of  the  proprie- 
tors upon  the  river,  and  the  boundary  line  between  his 
lantl  and  the  land  of  each  of  them  is  the  thread  of  the 
channel  between  the  middle  ground  and  the  main  land. 
People  V.  Canal  Appraisers,  13  Wend.,  355. 

When  a  description  in  a  deed  mentions  the  bank  of 
a  river  as  the  boundary  line,  bank  and  water  are,  in  such 
connection,  considered  as  synonymous  terms  and  the 
grantee  takes  to  the  middle  of  the  stream. 

Gavit  V.  Chambers,  3  Ohio,  496. 

St.  Clair  Co.  v.  Livingston,  23  Wal.,  62. 

When  land  is  bounded  upon  an  artilicial  pond,  like  a 
mill-pond  caused  by  tiie  overflow  of  a  natural  water 
course,  the  grantee  takes  to  the  middle  of  the  pond,  or 
rather  to  the  thread  of  the  stream,  but  when  land  is 
liounded  upon  a  natural  pond  or  lake,  the  grant  extends 
only  to  the  water's  edge. 

Wheeler  v.  Spinola,  54  N.  Y.,  377. 
Seaman  v.  Smith,  24  111.,  521. 


—127- 


ISI.ANDS. 


W'lii-ii  ;i  projirirtor  owns  both  Wanks  of  ;i  stream,  ho  is 
the  owner  of  the  initldle  <;roiiim  and  all  ishinds  situated 
ill  the  channel,  not  surveyed  by  the  ^overntni'iit,  or  other- 
wise excepted  from  its  <;runt  of  the  main  hmd. 

Uranger  v.  Avery,  04  Me.,  292. 
Jones  V.  Pettibone,  2  Wia.,  308. 


ALLUVION. 

Alluvion  is  the  addition  made  to  land  by  the  wasliini; 
of  tlie  sea  or  rivers.  It  is  defined  to  be  an  addition  to 
riparian  land,  j^radually  and  imperceptibly  made  by  the 
water  to  which  the  land  is  coiiti<;ii()iis.  The  test  as  to 
what  is  gradual  and  iinperceptii)le  in  the  sense  of  the  rule 
is,  that,  though  the  witnesses  may  see  from  time  to  time, 
that  progress  has  been  made,  they  could  not  see  it  while 
the  process  was  going  on.  Whether  it  is  the  effect  of 
natural  or  artificial  causes  makes  no  difference.  There- 
suit  as  to  ownership  in  either  case  is  the  same.  The 
riparian  right  to  future  alluvion  is  a  vested  right.  It  is 
an  essential  and  inherent  attriljute  of  the  original 
property. 

County  of  St.  C'luir  v.  LovinRston,  2.'}  Wul.,  4»;,  02. 
Tuppt'iulorfr  V.  DowiiiiiK.  Tti  ChI.,  iOit. 
Rutz  V.  Seeger,  3")  Fetl.  llep.,  ISS. 
Fllfniore  v.  Jennings,  7S  Ciil.,  034. 
Wiggenhorn  v.  Kountz,  23  Neb.,  6!»0. 


Land  t'oiiiKMl  by  alluvion  is  to  be  divided  among  the 
shore  owners  so  that  each  shall  secure  sucdi  a  share  as  he 
is  entitled  to  as  indicated  by  the  shore  line  of  his  land. 


-128— 

Deerfielii  v.  Anns,  17  IMck.,  41. 
Clark  V.  Canipau,  19  Mich.,  325. 
EmerHon  v.  Taylor,  9  Greene,  44. 
Newton  v.  K.ldy,  2.S  Vt.,  319. 
Hubbard  v.  Man  well,  (iO  Vt.,  235. 


HELICTION. 


If  the  course  of  ;i  river  is  suddenly  changed  and  it 
forms  a  new  channel,  the  land  lying  between  the  old  and 
the  new  channel  is  said  to  be  relicted.  When  a  river 
suddenly  changes  its  course,  such  change  does  not  affect 
the  pre-existing  boundary  lines  of  riparian  owners.  For 
instance,  if  the  river  X,  the  boundary  line  between  the 
lands  of  A  and  B,  should  suddenly  ciiange  the  course  of 
its  channel  at  the  boundary  line  of  A  and  B,  and  run 
wholly  through  the  lands  of  B,  B  would  thereafter  own 
the  entire  river  an  1  would  not  lose  his  right  to  the  soil 
relicted. 

Woodbury  v.  Siiort,  17  Vt.,  387. 

Lynch  v.  Allen,  4  Dev.  &  Bat.,  (N.  C),  62. 

Rutz  V.  Seeger,  35  Fed.  Rep.,  188. 

When,  however,  a   river  changes  its  main  channel 
merely,  shifting  it  from  one  bank  to  the  other,  and  the 
old  channel  gradually  tills  up  and  becomes  dry  ground, 
such  made  land  belongs  to  tiie  adjacent  owner. 
Trustees  v.  Dickinson,  9  Cusli.,  544. 

PROPERTY    IN    WATER   COURSES. 

A  water  course  is  a  part  of  the  freehold.  While  it  is 
said  that  there  can  be  no  ownership  in  the  water  of  a 
running  stream,  but  only  ownership  in  the  right  to  use 


-   129— 

\ho  water,  such  ownership  is  not  fonfiiKMl  to  a  mere  ri;:ht 
ill  the  nature  ol"  a  license  ami  is  not  (lepeiuh'iil  on  lands 
to  which  it  nia\-  he  ai)pnrlenant,  hut  the  ownership  in  the 
use  o("  the  water  may  l)e  separat(»  and  distinct  rntiii  owner- 
-hip  of  the  land. 

ilall  V.  Ionia,  .Is  Mich.,  4!i;{. 
Knight  V.  Wilder,  l!  Cusli.,  lUit. 


And.  since  a  natiiial  water  course  is  a  suhject  of 
property  of  which  a  freehold  iiiay  he  ])redicated,  it  cannot 
he  coiiliscate(l  hy  the  puhlic.  If  necessary  for  the  puhlic 
use,  it  inii>l  he  lakeii  throuiih  a  proper  exercise  of  the 
rijrht  of  eminent  domain. 

McConl  V.  HiKh,  24  Towa,  ;j;l6,  :548. 
Emery  v.  Lowell,  104  Mass.,  13. 

Every  person  throuirh  whose  lands  a  natural  water 
course  runs,  has  a  riiiht  to  the  Ijenefit  of  it  for  all  useful 
purposes  to  which  it  may  he  applied,  and  no  proprietor 
may  unreasonahly  divert  it  from  llowinj;  onto  his  premises, 
or  ohstruct  it  in  passing  therefrom,  or  pollute  it. 

Joliiison  V.  Jordan,  2  Mete,  2.'U,  2:«). 
Ulbrielit  v.  Water  Work.s,  Sfi  Ala.,  .").S7. 

Thi-^  rii^ht  of  user  iiiiplics  thai  each  proprietor  may  do 
such  acts  as  are  reasonalde  and  re<juisite  to  enal)le  him  to 
use  the  stream,  and  also  that  what  one  pro[)rietor  is 
authorized  to  do  each  aii«l  eviTV  one  of  the  proprietors 
may  do.  No  accurate  rule  can  he  given  which  will  meas- 
ure the  rights  of  owners  under  all  circumstances.  This 
general  rule  may  he  taken  as  a  guide  :  Each  riparian 
owner  may  make  any  rt'asonahle   use  of  tlie  water  upon 


—130— 

liis  premises,  i)rovi(le(l  ho  does  not  there)>y  deprive  an- 
other proprietor  of  a  I'air  and  reasonable  participation  in 
the  use  and  benefits  of  a  stream.  Wiielher  a  given  use  is 
reasonable,  under  all  the  eireumstances,  takins:;  into  con- 
sideration cspfcially  its  elfect  upon  the  rijihts  of  Other 
owners,  is  usually  a  question  of  fact  for  the  jury  to  find. 

Davis  V.  Getchell,  50  Me.,  002. 
Ferera  v.  Knii)e,  2S  Cal.,  .341. 
Anderson  v.  Railroad,  86  Ky.,  44. 


If  such  reasonable  use  injures  one  of  the  riparian 
owners,  he  has  no  right  of  action,  but  if  he  is  damaged 
by  an  unreasonable  use,  he  has  a  right  of  action.  As 
illustrating  what  has  been  held  in  this  state  to  be  an 
unreasonable  use,  it  has  been  decided,  that  one  could  not 
dam  up  and  retain  the  waters  of  a  stream  for  the  purpose 
of  flooding,  so  as  to  enable  log  owners  to  run  out  their 
logs,  to  the  detriment  of  a  mill  owner  on  the  stream. 
Woodin  V.  AVentworth,  57  Mich.,  278. 


One  is  entitled  to  the  reasonable  use  of  a  stream 
flowing  through  his  jaml  for  domestic,  agricultural  and 
manufacturing  purposes.  And  if  the  use  is  reasonable, 
one  may  deposit  saw-dust  and  other  refuse  and  waste 
matter  in  a  stream,  and  whether  such  use  is  reasonable  or 
not  will  depend  upon  a  variety  of  circumstances — the 
size  of  the  stream,  the  force  of  the  current  and  the  dis- 
tance to  and  the  situation  of  the  adjoining  proprietors 
who  may  be  injured  thereb\'. 

Hayes  v.  Waldroii,  44  X.  H.,  58(». 

Miner  v.  Gilinore,  12  Moore,  P.  C,  131,  156. 

Oremerod  v.  Todinoriien,  L.  R.,  11  Q,.  B.  D.,  155. 


—131— 

One  is  not  ]icniiiM('(l  Id  diviTt  tlir  wnlcrs  of  ;i  stream, 
except  ill  small  (luaiililies  ami  lor  purposes  for  wliieh  the 
riparian  owner  has  a  rijrht  to  ii<e  the  water.  The  diver- 
sion must  l>e  to  enal)le  the  owner  to  make  a  rightful  ami 
reasonable  use  of  the  water,  and  must  not  occasion  an 
unnecessary  loss  of  the  water  lo  the  damajre  of  other 
riparian  owners. 

Wailsworth  v.  Tillo.ston.  15  Conn.,  .'{GG. 
MessiUjULTH  Appeal,  10!)  Ph.  St.,  i!S"). 
Weis.s  V.  Orr^coii,  etf.,  l.>  Ort'^ori,  4!)G. 
Colrick  V.  Swinbunii*,  Id")  N.  Y.,  503. 


When  the  course  of  the  stream,  or  the  llow  of  a  por- 
ion  of  the  water,  is  chani^ed  within  the  limits  of  one.s 
own  land  and  the  water  is  returned  to  its  oriirinal  channel 
before  leavin*:!;  the  lan<l,  its  llow  n  )t  h  iviui:;  l)een  materi- 
ally diminished,  such  chani;e  is  not  regarded  as  a  diver- 
sion and  is  rightful. 

Pettiljone  v.  Smith,  .'>7  Mich.,  570. 


It  sometimes  happens  that  the  water  in  a  stream  is 
insullicient  to  supply  the  legitimate  wants  of  all  the 
riparian  owners.  In  >uch  a  case,  how  shall  the  water  l»i' 
api)ortioned  among  them  ^  Who  is  entitleil  to  have  his 
wants  (irst  supplied:'  And  what  wants  are  entitled  to 
preference^     It  seems  to  be  well  settled, 

1.  Tliat  a  riparian  owner  may  freely  use  all  the 
water  necessary  for  donu'slic  imrposes  and  for  watering 
his  stock.  That  the  upper  proprietor  has  the  first  right  to 
u-e  I  he  waler  for  iho^i'  pur[)oses,  and  if  he  should  use  the 
whole  of  it,  the  other  proprietor-  would  l»e  without 
remedv. 


—132— 

2.  That  the  riparian  owner  may  use  a  reasonable 
amount  for  agricultural  purposes,  irrigation,  but  not  an 
unreasonable  quantity. 

These  wants  are  given  the  preference  over  others  for 
very  obvious  reasons.  Use  of  water  for  domestic  pur- 
poses is  of  primary  importance,  and  there  is  almost  a  like 
necessity  for  its  use  in  watering  stock.  The  right  to  use 
water  for  irrigation  is  not  so  evident,  but  is  based  upon 
the  principle,  that  the  harvest  field  is  a  primary  necessity. 

Evans  v.  Meriweather,  3  Scamm.,  492. 
Bliss  v.  Kennedy,  43  111.,  67. 
Stein  V.  Burden,  2<J  Ala.,  127. 
Spence  v.  McDonough,  Iowa,  (1889). 

The  use  of  water  must  be  such  as  will  not  corrupt  it 
and  make  it  unwholesome. 

Crossley  v.  Lightowler,  L.  R.,  2  Ch.,  Ap.,  478. 
Crossley  v.  Lightowler,  36  L.  J.,  Ch.,  584. 
Fergersou  v.  Mfg.  Co.,  —  Iowa,  (1889). 


LECTURE  XIV. 


TIIK    USE   OF    WATER   AS    A    MOTIVE    POWER. 

When  tlie  water  of  a  stream  is  used  to  propel  ma- 
chinery, the  conllicting  interests  of  riparian  owners  often 
presents  many  didienlt  and  perplexing  qnestions.  Tiiese 
questions  may  arise  between  dillerent  riparian  owners 
who  are  using  the  stream  for  the  same  purpose,  or  Ije- 
tween  a  mill  owner  and  a  riparian  owner,  who  is  using 
the  water  of  the  stream  for  some  purpose  other  tiian  pro- 
pelling machinery. 

In  some  of  the  states,  there  are  special  statutes  which 
provide  that  private  property  may  be  taken  for  mill  pur- 
poses. Decisions  arising  under  tliose  local  statutes  we 
shall  not  examine. 

In  entering  ujxju  a  consideration  of  this  topic  it  is 
necessary  to  deliiie  what  in  the  hiw  is  understood  by  the 
terms  ''  mill  site,"  "  mill  seat,"  or  *'  water  power."  These 
several  terms  are  practically  synonymous  in  meaning.  A 
water  power  is  usually  described  as  consisting  of  so  many 
feet,  which  indicates  the  fall  of  the  stream  on  the  pro- 
prietor's premises,  being  the  difference  between  tiie  level 
of  the  surface  of  the  water  of  the  stream  at  tlie  point 
where  it  enters  the  land  owner's  [)r('niis('s  ;ind  the  level  of 
the  surface  at  the  point  where  it  leaves  those  premises. 

:McCaIin()nt  v.  Wliittaker,  :i  Ruwie  84. 
PluiukMii^h  V.  Dawson,  1  (Jiha.,  544. 


— 1:34— 

A  riparian  proprietor  luis  a  right  to  utilize  a  water 
])o\ver  l)y  erectiiif^  a  dam  and  temporarily  impedinj;  the 
natural  llow  of  tiie  water  of  a  stream.  Such  user  of  the 
water  is  a  natural  user,  and  altliou^^h  the  natural  and  con- 
tinuous llow  of  the  water  is  thus  temi)orarily  impeded  to 
llie  injury  of  a  lower  riparian  owner  he  is  not  permitted 
to  complain. 

Durnont  v.  Kellogg,  29  Micti.,  420,  423. 
Hoxie  V.  Hoxie,  38  Mich.,  77. 
Patten  v.  Marden,  14  Wis.,  473. 


With  reference  to  the  amount  of  water  [)ower  which 
the  riparian  owner  must  huve  in  order  to  confer  upon 
him  the  rij^ht  to  pen  up  the  waters  of  a  stream,  this  is  the 
general  rule.  The  power  must  be  sufficient  in  amount  to 
enable  the  owner  to  apply  it  to  some  useful  purpose.  A 
riparian  owner  may  never  wantonly,  for  no  good  and  use- 
ful'purpose,  interfere  with  the  natural  flow  of  a  running 
stream,  llis  right  to  interfere  with  such  flow  at  all  is 
merely  incident  to  his  right  to  use  the  waler.  He  has  a 
right  to  pen  up  the  water  to  enable  him  to  use  it.  U  he 
cannot  use  the  water,  he  may  not  pen  it  up. 

Wood  V.  Eden,  2  Allen,  578. 
Burke  v.  Smith,  69  Mich.,  330. 


An  owner  of  a  mill  site  has  a  right  to  build  a  dam 
across  the  stream  which  will  raise  the  water  at  his  own 
upper  line  as  high  as  the  water  was  in  the  bottom  of  the 
stream  at  the  time  he  buihls  his  dam.  In  other  words,  he 
has  the  right  to  so  pen  up  the  waters  that  when  they 
leave  his  premises  he  shall  have  the  full  beneflt  of  the 
entire  fall  at  one  point. 


—135— 

McCalnioiit  v.  Whittaker,  3  Rawle,  .S4. 
Doiiiiaii  V.  Ames,  12  Minn.,  l")l. 


In  constructing  his  dam  so  as  to  obain  the  lull  ad- 
vantage of  his  mill  site,  the  natural  fall  of  tlie  waters 
upon  his  lands,  the  owner  must  not  interfere  with  the 
condition  of  the  water  in  the  stream  above  his  premises. 
He  must  not  force  the  water  hack  upon  those  premises. 
And  at  this  point  difficult  questions  are  often  presented 
for  solution.  For  instance,  an  upper  owner  claims  that 
his  lands  are  flooded  by  reason  of  a  dam  erected  on  the 
stream  below  him.  The  owner  of  the  dam  insists  that 
such  flooding  is  not  due  to  the  dam,  for  the  reason  that 
the  height  of  the  dam  is  considerably  less  than  the  fall  of 
the  water,  as  ascertained  by  accurate  measurements. 
When  a  controversy  of  this  kind  arises,  science  must  yield 
to  actual  facts.  The  upper  owner  is  not  required  to 
explain  how.  (when  there  is  a  fall  say  of  twelve  feet 
between  his  premises  and  the  dam,  and  the  dam  is  only 
ten  feet  high),  the  dam  causes  the  water  to  overflow  his 
premises,  but  if  such  is  the  fact,  he  can  recover. 

Alexander  v.  Busb,  45  Pa.,  Gl. 
Fincli  V.  Green,  10  Minn.,  ."too. 
Perry  v.  Biuney,  lo.}  Mass.,  156. 


The  right  which  tlu'  riparian  owner  has  to  a  reason- 
able use  of  the  water  in  a  stream  is  a  right  incident  to 
the  ownership  of  the  lami,  ami  is  not  aojuiri'd  by  grant 
or  prescription  or  liccnsi',  and  therefore,  it  may  be  stated 
as  an  UM(]naliiit'(l  proposition  that  no  priority  of  (KH'Ui)a- 
tion  or  use  of  water  Ity  a  mill  (»WM«'r  upon  a  stream  within 
the  limits  of  his  own  land  i  an  atl'cct  tlu'  right  of  a  riparian 


—136— 

owner  ;il»()VO  to  croct   ;iii<l  opcralc  a  mill  in  a  siiitaljle  and 

reasonalilc  manner. 

TIhiiIkt  v.  Mill-till.  2  CSniy,  ;V.)4. 
McDoimM  V.  Askew,  29  Ciil.,  201,  207. 
Duinoiit  V.  Kellogj,',  2!t  Mich.,  420. 


Hut  while  one  may  not  rightfully  use  the  water  upon 
his  own  premises  so  as  to  interfere  with  the  flow  of  water 
upon  another's  premises,  yet  as  a  matter  of  fact  in  actual 
life,  it  very  often  happens  that  the  erection  of  a  dam  sets 
water  back  for  a  considerable  distance  beyond  the  bound- 
ary of  the  owner's  land.  When  any  such  adverse  user 
continues  for  the  statutory  period,  the  owner  acquires  the 
right  to  continue  such  user  by  prescription. 
Townsend  v.  McDonaKl,  14  Barb.,  4G0. 


As  we  have  seen,  an  easement  cannot  be  acquired  by 
prescription,  unless  the  user  has  been  open,  adverse  and 
continuous  for  the  entire  period.  In  case  of  a  mill  dam, 
it  is  not  the  height  of  the  dam  which  determines  the  ex- 
tent of  the  easement,  but  the  heii^ht  at  which  the  water 
in  the  pond  has  been  maintained. 

Russell  V.  Scott,  9  Cow.,  279. 
Smith  V.  Hush,  17  Wis.,  2.'?4. 
(irisby  v.  Clear  Lake  Co.,  40  ("al.,  407. 
Postlethwaite  v.  Payne,  S  Iiid.,  104. 


Flash  boards  are  frequently  used  to  increase  the 
height  of  a  dam.  When  such  boards  are  used  for  l)rief 
periods  and  with  little  damage  to  third  parties,  such  tiser 
does  not  satisfy  the  requirements  of  the  statute.     The 


~1H7— 

l»<>anls  must  lie  ii<t*(l  so  fonlimmiisly  as  lo  make  llnru  in 
liu't  a  pt'iiuamMit  part  of  the  darn. 

Pierce  v.  TraviTHe,  1I7  Mutw.,  3(Mi. 
Marcly  v.  Sliults,  Lll  N.  Y..  .iVi. 
CurliHlc  V.  (•..(. ptT,  '21  N.  J.  Kq.,  570,  ."ilX), 
Hall  V.  Aiij,'sl.iiry,  4ti  N.  Y.,  filili. 


Sonu'tinics  a  mill  owMcr,  for  tlic  pmposo  of  obtaining 
a  contiiinons  supi»ly  of  water,  imvcIs  auxiliary  dams  on 
the  stream  al)ovt'  liis  nniiti  dajn.  During;  liij;li  water  all 
the  dams  are  lillt'd.  and  durini:  l«>w  water  the  lower,  or 
main  dam,  can  he  snpplied  with  water  from  the  auxiliary 
dams.  By  the  erection  of  such  auxiliary  dams  and  their 
continuous  use  for  twenty  years,  the  mill  owner  accpiires 
an  easement  in  the  stream  l>etween  his  main  dam  and 
such  upper  dam  to  have  the  water  tlow  without  harmfid 
interruption,  from  the  upper  pond  to  the  lower. 

Hrace  v.  Yali-,  10  .Vlk-ii,  441. 
Brace  v.  Yale.  i»7  Mass..  18. 
Brace  v.  Yale,  9!)  Ma.ss.,  488. 


The  rij^ht  to  pollute  water  in  a  stream  as  aj^ainst  other 
riparian  owners  may  he  ac(|uire(l  hy  prescription. 

Cro.ssley  v.  LIkIiIowUt,  L.  II.,  li  t'h.,  47S. 

Crosslej"  V.  Lij^hlowltT.  L.  U.,  .'i  lOij.,  Cas.,  271). 

Jones  V.  (!r(»\v',  :\2  Vn.  St.,  [VM. 

McC'alluin  v.  Uerinaritowii,  etc.,  ")4  Pa.  8t.,  4<). 

H(.ltiiiaii  V.  B-)ilint,'  S.  Bl.  Co.,  14  N.  J.,  F:<i.,  3.1"),  M^. 


Hut  no  one  can  hy  irrant  or  prescription  ac(piire  the 
rij;ht  to  maintain  a  i)uhlic  nuisanc**.  And,  if  hy  the  llow- 
ai;e  of  lamls,  or  the  polliit  ion  (tl'  water,  t  he  i)ul)lic  health  is 


—138— 

eiulaiigored,  the  Iciiiitli  of  liiiu;  diiriiii:  which   the  public 
health  has  been  eii(huiii;er('(l  is  wholy  immaterial. 

Wright  V.  Moore,  3S  Ala.,  •V.i.'^. 
State  V.  liaiikiii,  .'}  S.  C,  438. 


When  a  mill  owner  has  acquired  l)y  j^rant,  or  pre- 
scription, the  right  to  maintain  through  the  lands  of  an- 
other, a  tail  race  by  means  of  which  the  water  from  his 
mill  is  discharged,  he  may,  when  necessary,  go  upon  such 
lands  to  make  repairs  to  the  race. 

Prescott  V.  Williams,  2  Mete,  429. 
Fessendeu  v.  Morrisou,  19  N.  H.,  226. 


The  mill  owner  must  not  only  make  a  reasonable  use 
of  the  water  of  the  stream,  both  as  to  the  quantity  of  wa- 
ter used  and  the  manner  of  its  use,  but  the  means  which 
he  employs  to  use  the  water  must  also  be  reasonable  and 
suitable  under  all  the  surrounding  circumstances.  In 
constructing  his  dam  he  must  take  into  account  the  na- 
ture of  the  stream.  If  freshets  occur  at  stated  periods, 
or  are  liable  to  occur,  he  must  make  suitable  provision 
for  tiie  safety  of  his  dam  at  such  times.  If  the  tlow  of 
water  is  limited,  he  must  not  erect  a  mill  that  will  re- 
quire him  to  retain  the  water  for  an  unreasonable  time. 

Casebeer  v.  Mowrey,  oo  Pa.  St.,  418,  423. 
Bell  V.  McClintoek.  9  Watts,  119. 
Fatten  v.  Marden,  14  Wise,  513. 
Merritt  v.  Brinkerhoff,  17  Johns,  30'). 


The  use  of  a  stream  to  furnish  motive  power  being 
a  natural  use,  the  mill  owner  is  only  required  to    use  rea- 


—139— 

soiuil)K'  ciirt'  and  prudence  in  iruunlinj;  afrainst  accidents, 
ir  damage  rosnlts  from  vis  major,  he  is  not  liable. 

H.-ll  V.  Mc("Iiiit(.<-k,  i)  WattB,  119. 
McCoy  V.  Dimly,  L'n  Pa.  St.,  S"). 

Orinerod  v.  Totlinorden  Mill  C<».,  L.    11.  11  l^.  li.  1),,  l.'w, 
168. 


The  rule  recjuires  him  not  only  to  use  reasonable  care 
and  prudence  in  the  constrnction  of  the  dam  in  the  iirst 
instance,  but  also  to  maintain  it  in  a  safe  condition.  If  he 
sulfers  it  to  become  unsafe  for  want  of  repair,  or  for  any 
other  reason  under  his  control,  and  (hiniai^e  is  hereby 
caused,  he  is  liable. 

Laphain  v.  Curtis,  ")  Vt.,  371. 
Soule  V.  Russell,  1;{  Mete,  436. 

The  mill  owner,  owninii  both  l)anks  of  the  stream,  has 
a  rifrht  tf)  an  unobstructed  llow  of  the  water  below  his  mill 
for  the  [)urpitse  of  ventirif/,  as  it  is  calleil,  the  waters  of  his 
pond,  according  to  the  natural  course  and  descent  of  the 
stream.  A  subsequent  occupant  of  a  mill  site  below  can- 
not back  the  water  so  as  to  deprive  the  Iirst  proprietor  of 
this  natural  descent  and  llow.  Ibit  iti  order  to  set  up  this 
priority  of  riirht,  the  up[)er  pr(»i»rie!(»r  must  own  or  con- 
trol both  baidvs  of  the  stream. 

Delaiiy  v.  linston,  _'  HHrrin^t,  (Del.),  48!). 
Hliss  V.  Rice,  17  Pick.,  23. 


When  the  land  ui)()n  opposite  sides  of  a  stream  be- 
longs to  diU'erent  rip:iriaii  owners,  they  may  unite  and 
erect  a  dam  in  common.  In  such  c  i-.e  they  become  ten- 
ants in  common  of  the  water  power,  although  each  must 


—140— 

apply  it  upon  liis  own  premises.  If  either  uses  the  water 
in  an  iinreasonal)le  manner,  he  is  liable  to  tiie  other  for 
the  injury  caused  thereby.  Neither  can  waste  the  water 
to  the  prejudice  of  the  other.  Kach  owner  is  bound  to 
keep  his  part  of  the  dam  in  repair,  so  long  as  he  uses  the 
water  of  the  pond,  and  in  case  either  ceases  to  use  it,  the 
other  may  maintain  and  keep  the  dam  in  repair. 

Runnels  v.  Bullen,  2  N.  H.,  532. 
Converse  v.  Ferre,  11  Mass,  32o. 

When  two  persons  draw  water  for  tlieir   mills   from 
the  same  dam,  and  neither  has  anj'^  special  right,  by  grant 
or  i)rescription,  each  may  continue  to  use  the   water  with- 
out reference  to  its  effects  upon  tiie  other. 
Brown  v.  Boweu,  30  N.  Y.  519,  538. 

At  common  law  there  is  no  process  for  dividing  incor- 
poreal hereditaments,  like  a  joint  water  power,  by  what 
answers  to  metes  and  bounds.  But  a  partition  may  be 
made  by  mutual  arrangements,  wliich  shall  determine  the 
quantity  of  water  which  each  shall  use,  or  tlie  time  or 
manner  of  its  use,  and  such  arrangements  will  be  enforced 
by  the  courts. 

Bard  well  v.  Ames,  22  Pick.,  .333. 
BliHS  V.  Rice,  17  Pick.,  23. 
Webb  V.  Mfg.  Co.,  13  Johns,  215. 
Webb  V.  Mfg.  Co.,  17  Johns,  306. 
Organ  v.  Railroad,       Ark.,  18S9. 


Questions   sometimes  arise  in  regard  to  the  proper 
construction  of  a  grant  of  water,    for   instance,  whether* 
tlie  grant  of  sufficient  water   to  run  a  mill  of  a  certain 


—141  — 

kind,  as  a  saw  mill,  jurist  mill  &c..  is  a  j^rant  of  water  for 
that  particular  kiii<l  of  mill  exclusively,  or  whetiier  those 
words  are  descriptive  of  the  amount  of  power  granted, 
whifh  may  he  usimI  for  any  lej^itimate  purpose.  As  a 
general  rule,  the  court  construes  the  language  in  such  a 
deed,  to  deline  11. e  (pianlity  of  power  granted,  and  not  the 
purposes  to  which  it  must  be  exclusively  applied. 

Biglow  V.  Buttle,  lo  Mass.,  313. 
Pratt  V.  Lanison,  2  Allen,  275. 

A  riparian  owner  cannot,  except  as  against  iiimself, 
confer  upon  another,  who  is  not  a  riparian  owner,  the 
right  to  use  the  water  of  a  stream.  Any  use  of  water  by  a 
non-riparian  owner,  even  under  a  grant  from  a  riparian 
owner,  which  diminishes  the  value  of  a  strean  to  another 
riparian  owner,  is  wrongful. 

Ormerod  v.  Todmorden  «&c,  L.  R.,  11  Q.  B.  D.,  loo. 

Nuttall  V.  Bracewill,  L.  -R.,  2  Ex.,  1. 

Holker  v.  Porritt,  L.  R.,  8  Ex.,  107. 

Swinden  Water  Works  Co.  v.  Wilts  &  Buks.  Canal  Nav. 

Co.,  L.  R.,  7  H.  L.,  G97. 
Heilbron  v.  Forolu  &c.,  7o  Cal.,  420. 
Haupt's  Appeal,  125  Pa.  St.,  211. 

While  a  non-riparian  owner  cannot  by  license  or 
grant  acquire  the  rights  of  a  rii>arian  owner,  still  if  his 
use  of  the  water  does  not  in  any  way  injure  the  other 
riparian  owners,  by  polluting  the  water  or  diminishing  its 
How,  they  have  no  reason  to  complain. 

Kensit  v.  The  G.  E.  R.  R..  L,  R.,  27  Cli.  1).,  122. 
Heilbron  v.  F.  !S.  and  C.  Co.,  75  Cal,  420 


LECTURE  XV. 


NAVIGABLE  RIVERS. 

At  common  law  those  rivers  only  are  subject  to  the 
servitude  of  the  public  interests,  which  are  of  common  or 
public  use  for  the  carriage  of  ]>oats  and  lighters  in  the 
transportation  of  property.  But  in  this  country  the  pub- 
lic right  does  not  depend  upon  common  or  general  use, 
and  it  is  generally  held  that  all  streams,  which  in  the  nat- 
ural state  have  a  capacity  for  valuable  llotage,  are  navi- 
gable. 

Moore  v.  Sanborn,  2  Mich.,  519. 
Brown  v.  Chadbourne,  31  Me.,  9. 
Smith  V.  Fonda;  64  Miss.,  551. 
Commonwealth  v.  Vincent,  108  Mass.,  441. 


The  courts  of  this  state  hold  that  if  a  stream  is  capa- 
ble of  being  used  for  valuable  llotage,  either  of  boats, 
rafts,  shingle  bolts,  staves,  poles,  or  other  products  of  the 
forest,  then  it  is  to  be  considered  as  navigable,  and  that 
whether  it  has  or  has  not  heretofore  been  used  for  either 
of  those  purposes,  is  immaterial. 

Burroughs  v.  Wliitwan,  59  Mich.,  279-285. 
Thunder  Bay  River  Booming  Co.  v.  Speechly,  31  Mich., 
336. 


—143- 

Naviiiiihk*  waters  are  public  liii;li\vays  at  common 
law. 

La  Plaisaiice  Bay  Harbor  Co.  v.  Monroe., Walk.  Cli.,  l.>j. 

When  a  stream  is  valuable  for  the  floating  of  vessels, 
boats,  rafts  or  logs,  the  owners  of  the  bed  are  restricted  in 
the  use  of  such  stream  to  those  uses  wiiicii  are  not  unrea- 
sonably inconsistent  with  the  enjoyment  of  that  easement 
by  the  public. 

Brown  v.  Chadbourne,  .'U  Me.,,  9,  21. 
Peters  v.  New  Orleans  R.  R.,  .56  Ala.,  .528. 
Tyrrell  v.  Lockhart,  3  Blaekf.,  1.3fJ. 
Hubbard  v.  Bell,  54  111.,  110. 


The  use  of  a  navii;al)le  stream  is  open  to  everyone 
equally,  and  no  one  has  a  rii;ht  to  occupy  the  channel  for 
a  lon<!;er  time  than  is  reasonable,  but  when  several  persons 
have  filled  the  stream  for  a  long  distance  with  their  logs, 
the  person  first  in  has  a  right  to  claim  the  use  of  the  cur- 
rent first. 

Butterfield  v.  Gilolirist,  5:5  Mich.,  22. 
Sullivan  v.  Jeinigan,  21  Fla.,  2(54. 


But  when  a  boom  c()m[)any  needlessly  or  willfully 
obstructs  a  stream,  it  is  liable  in  damages  to  the  persons 
injured. 

Watts  V.  Tittabawassee  Boom  Co.,  55  Mich.,  2o2. 


The  right  of  the  public  to  use  the  waters  of  a  navi- 
gable stream  is  not  subordinate  to,  but  is  concurrent  with 
thatoflh<}  riparian  owners,  and  conse<pientl3',  if  a  boom 


—144— 

company  in  using  the  waters  of  u  stream  to  lloat  logs,  use 
reasonable  care  and  skill,  they  are  not  responsible  for 
damages  caused  by  the  stream  overllowing  its  banks,  due 
to  tlie  logs  in  the  waters. 

White  River  Log  &  B.  Co.  v.  Nelson,  4-3  Mich.,  578. 

In  all  navigable  streams  the  public  have  a  right  to 
the  use  of  the  water  for  the  purposes  of  free  navigation. 
And  this  right  must  not  be  interfered  witli  by  any  one  to 
the  detriment  of  others.  Usage  and  custom  will  not  give 
any  one  a  rigiit  to  unreasonably  interfere  with  the  rights 
of  the  public  to  use  the  waters  of  a  navigable  stream. 

Gifford  v.  McAithur,  55  Mich.,  535. 

Field  V.  Apple  River  Log  Driving  Co.,  67  Wis.,  569. 

Haines  v.  Welch,  14  Oregon  319 

Fulmer  v.  Williams,  122  Pa.  St.,  191. 

Orr  Ewing  v.  Colquhouu,  L.  R.,  2  App.  Cas.,  839, 

Subject  fo  this  right  of  the  public  to  use  the  waters  of 
a  navigable  stream  for  the  purposes  of  navigation,  the 
riparian  owner's  rights  are  not  effected.  He  may  erect 
wharves  near  tiie  shore,  and  persons  navigating  the  waters 
of  the  stream  will  not  be  permitted  to  land,  except  in 
cases  of  necessity,  without  the  permission  of  the  owner, 
and  he  has  the  right  to  make  a  reasonable  charge  for  the 
privilege  of  landing. 

Brainbridge  v.  Shirlock,  29  Ind.,  364,  369. 
Estuiuger  v.  People,  47  111,,  384. 


la  England,  under  recent  decisions,  the  riparian 
owner  owns  the  bed  of  the  stream  ad  medium  Mium  aquoe 
in  all  non-tidal  rivers. 


—145— 

Orr  Ewing  v.  Cohiuhoun.  2  App.  Cas.,  839. 
Bristow  V.  Corniican,  3  App.  Cas.  641. 
Hargreavesv.  Diddaius,  L.  R.,  10  Q.  B.,  582. 

The  riij;ht  of  tlie  public  to  use  such  stream  for  the 
purposes  of  navigation  depends,  according  to  the  English 
courts,  upon  whether  or  not  such  right  has  been  acipiired 
by  prescription. 

King  V.  Montague,  4.  B.  C,  oS'J. 

Orr  Pawing  v.  Colquhoun,  2  App.  Cas.,  839. 


And  such  was  \\\v  rule  as  established   by  the  early 
decisions  in  this  country. 

Berry  v.  Carle,  3  Greene,  209. 


But  it  is  now  iirnily  established  here  that  those  rivers 
are  navigable  in  law  which  are  navigable  in  fact. 

Lorman  v.  Ben.son,  8  Mich.,  18. 
Cox  V.  State,  3  Blckf.,  183. 
Healy  v.  Joliet  R.  R.,  2  111.  App..  435. 
Hickok  V.  Hine,  23  Ohio  St.,  523. 
Barnard  v.  Hinckley,  10  Mieli.,  458. 
Barnard  v.  Keokuk,  84  U.  S.,  324. 


The  ordinance  of  17^T  for  the  governtnent  of  the 
Northwest  territory  provided  (Art.  4)  that  ''the  navigable 
waters  leading  into  the  Mississippi  and  St.  Lawrence,  and 
the  carryi!ig  places  between  the  same,  shall  be  common 
highways  and  forever  free,  as  well  to  the  inhabitants  of 
said  territory  as  to  the  citizens  ol  the  United  States,  and 
those  of  any  other  states  that  may  l)e  admitted  into  the 
confederacy,  without  any  ta.K,  impost  or  duty   therefor." 


—146— 

This  provision  has  been  construed  by  the  supreme  court 
to  vest  in  the  several  states  the  ownership  of  the  l)ed  of 
navigable  waters. 

R.  K.  Co.  V.  Schuniu'ir,  7  Wall,  272. 
Schunueir  v.  R.  R.  Co.,  10  Minn,  5!t. 


Under  tiie  common  law,  the  ownership  of  the  soil 
under  navigable  rivers,  vested  in  the  sovereign  and  the 
jurisdiction  of  the  court  of  admiralty,  extended  over  such 
waters  and  was  limited  to  them,  and  navigable  waters 
were  held  to  be  those  in  which  the  tide  ebbed  and  flowed. 
Constable's  Case,  o  Coke,  106, 

This  definition  would  exclude  from  the  jurisdiction 
of  the  court  of  admiralty  in  this  country,  the  inland 
lakes  and  the  great  rivers  above  the  tide  limit.  But  our 
courts  have  disregarded  this  definition  of  navigable  waters 
as  wholly  inapplicable  to  the  waters  of  this  continent. 
Genesse  Chief,  12  How.,  443,  454. 

Since  the  soil  under  navigable  waters  belongs  to  the 
sovereign,  it  is  held  that  land  bounded  by  navigable  water 
and  sold  by  the  United  States,  is  bounded  by  high  water 
mark;  that  the  United  States  government,  in  all  the  ter- 
ritories, holds  the  soil  under  such  waters  in  trust  tor  the 
future  state,  and  that  upon  the  admission  of  such  terri- 
tory into  the  union  as  a  state,  the  title  to  such  soil  vests 
in  the  new  state. 

Martin  v.  Waddle,  16  Pet.,  367, 

Pollard's  Lessee  v.  Hagau,  3  How.,  212. 

Attorney  Gen.  v.  City  of  Eau  Claire,  37  Wis.,  400-447. 

Fulmer  v.  Williams,  122  Pa.  St.,  191. 


-147— 

Tlic  owiici-liiit  of  the  soil  under  iKivii^able  waters, 
bein^  in  the  state.  Nvitliin  whoso  territory  such  lands  are 
situated,  the  decision  of"  the  several  state  courts  must  he 
consulted  to  determine  whether  or  not  in  any  j»articular 
instance  the  rijiai'ian  owner  on  a  navifjjable  stream  owns 
to  the  thread  ol"  the  channel. 
Gould  on  Waters,  i,i,m-7U. 

But  the   decisions  of  ail    the  i-()urls   are    unilorm   in 

holding  that  tin'  lines  run  l>y  the  Tnited  States  surveyors 
alonji  the  river  hank  are  not  the  boundary  lines  of  tlie 
riparian  owner;  that  he  owns  at  least  to  the  water's  edge, 
and  that  therefore  all  accretions  belong  to  the  riparian 
owner. 

lierison  v.  Morrow,  HI  Mo.,  34"). 

Koss  V.  Faust,  ")4  I  ml.,  471. 

Rice  V.  Rucldinian,  10  Mich.,  125. 

Railroad  Co.  v.  Scliuriaeier,  10  Minn.,  59. 

LAKES. 

At  common  law  thi'  crown  did  not  own  the  soil  under 
the  waters  of  a  fresh  water  lake. 

Bristow  V.  Cormican,  H  App.  Cas.,  <j41. 
Marsliall  v.  Uileswater  .tc,  L.  R.,  7  Q.  IJ.,  IGtl. 
Marshall  v.  IJIlswater  &c.,  .'{  B.  &  S.  732-742. 

In  this  country  a  distinction  is  made  between  puldic 
and  private  lakes,  depending  upon  their  size  and  value 
for  |»iir|ioses  of  navigal  ion. 

Verplaiik  v.  Hall.  27  Mich.,  70. 
State  V.  Franklin,  A:c.,  4!t  N.  H.,  240,  250. 
Rice  V.  Ruddinian,  10  Mich.,  125. 
Jakcway  v.  Barntt,  3S  Vt.,  31(5,  323. 


LECTURE  XVI. 


RIGHTS  OF  FISHERY. 

Wlien  a  person  owns  both  banks  of  a  water  course,  he 
has  the  exclusive  right  of  the  use  of  the  water  within  the 
limits  of  his  land,  and  when  he  owns  one  bank  only  such 
right  extends  to  the  thread  of  the  channel.  Concomitant 
with  his  ownership  in  the  soil  is  an  exclusive  right  of  fish- 
er}'.  Tlie  riparian  owner  has  the  exclusive  right  to  take 
iish  irom  any  part  of  the  stream  witiiin  his  territorial 
limits. 

Gould  V.  James,  -5  Cowan,  369. 


It  would  seem  that  this  rule  was  modified  somewhat 
in  this  state.  The  supreme  court  says  that  "  such  fishing 
as  is  done  with  lines  from  boats,  even  in  niirrow  streams, 
cannot  be  complained  of  by  riparian  owners.  The  fish 
are  like  any  other  animals  ferae  natune^  and  in  this  re- 
gion have  always  been  regarded  as  open  to  capture  by 
those  having  a  riglit  to  l)e  where  they  are  captured." 

Lincoln  v.  Davis,  "iS  Mich.,  375-391. 
liurroughs  v.  Wliitwam,  49  Mich.,  270. 


Our  state  court   has  also  hoM  tliat  when  the  public 
have  not  been  notified  and  warned  not  to  fish  in  lakes, 


—140— 

ponds  and  water  courses,  any  one  niuy  understand  that  he 
is  licensed  so  to  do. 

Marsh  v.  Colby,  5!t  Mich.,  (5i'<). 

A  license  dilFers  materially  from  a  ri^lit,  and  the  ques- 
tion may  he  considered  as  still  an  open  question  in  this 
state. 

At  common  law  the  riparian  owner  on  a  stream  not 
affected  by  the  tide  had  an  exclusive  ri<;ht  to  fish  in  front 
of  his  land  to  the  middle  of  the  stream. 

Miilconison  v.  O'Keii,  10  H.  L.  Gas.,  591-618. 
Hargreaves  v.  Diddaais,  10  Q,.  B.,  5«2. 


A  similar  rule  exists  in  most  of  the  states. 

Com.  V.  Chapin,5  Pick.,  19!J. 

Com.  V.  Vincent,  108  Mass.,  441-440. 

Moulton  V.  Libbey,  37  Me.,  472. 


At  common  law  all  [xtsohs  have  a  common  and  gen- 
eral ri;j;ht  to  lish  in  the  sea  and  in  all  rivers  affected  by 
the  ebb  and  flow  of  the  tide,  and  the  law  makes  no  dis- 
tinction in  this  respect  between  shell  fish  and  swimming 
and  floating  fish. 

Weston  V.  Sampson,  8  Cush.,  347,  355. 
Lincoln  v.  Davis,  5.'5  Mich.,  375. 


It  must  be  understood,  however,  that  the  right  to  take 
lish  from  i)rivate  or  public  waters  may  be  regulated  by  the 
legislatures  of  the  several  states.  The  legislature,  as  rep- 
resenting the  people,  has  a  right  to  regulate  the  individual 
and  common  rights  of  fishing  in  the  interests  of  the  state. 
11 


—150— 

Within  a  few  years  the  attention  of  the  public  has  been 
especially  called  to  this  subject,  and  in  many  of  the  states 
oflicial  boards  exist  whose  duty  it  is  to  see  that  the  stat- 
utes are  strictly  enforced  which  have  been  enacted  for  the 
purpose  of  preserving  game  fish.  The  extent  of  these 
interests  in  many  of  the  states  fully  justifies  this  action. 
In  this  state,  according  to  the  census  of  1880,  there  was 
over  (jne-half  million  of  money  invested  in  tli*^  business  of 
fishing,  giving  employment  to  nearly  two  thousand  men, 
and  the  value  of  the  catch  was  about  $3,250,000. 
Howell  Statute,  Chap.  68. 

The  riparian  owner  has  tiie  sole  right  to  fish  with  nets 
or  seines  in  connection  with  his  own  land,  even  in  those 
waters  where  the  the  public  have  a  common  fishery.  The 
right  of  the  public  to  fish  in  the  water  gives  them  no  right 
to  the  use  of  the  soil  of  the  riparian  owner. 

Hart  v.  Hill,  1  Wharton,  138. 
Lay  v.  King,  5  Day  (Conn.),  72. 

Under  the  statutes  of  this  state,  persons  are  prohib- 
ited from  driving  stakes  or  erecting  platforms  in  front  of 
the  lands  of  a  riparian  owner,  between  the  bank  and 
thread  of  the  stream,  or  within  one  mile  of  the  shore  on 
the  great  lakes. 

Howell,  §2172. 

Our  courts  have  construed  this  statute  to  give  the 
shore  owner  an  exclusive  right  to  fish  with  such  appli- 
ances as  require  that  they  should  be  fastened  to  the  soil. 
They  say  the  riparian  owner  on  the  great  lakes  owns  to 
low  water  mark  but  has  the  right  to  erect  wharves  and 


— IT)!  — 

other  structures  in   iVoiit  ol'  his  picniisps  wliir-h  will  not 
interfere  with  navij^iition. 

Lincoln  V.  Davis,  o3  Mich.,  37o-38o. 


AinoiifT  other  ri»!;hts  which  he  has  under  the  statute 
is  the  exclusive  rijL!:iit  to  tiike  fish  within  one  mile  of  the 
shore. 

Howell,  ?2172. 

But  this  right  to  fish  is  a  right  belonging  to  all  the 
citizens  of  the  state  in  coninion,  which  must  l)e  exercised 
subject  to  the  right  of  navigation,  and  is  under  the  control 
of  the  legislature. 

Lincoln  v.  Davis,  5;{  Mich.,  37o-38.5. 

But  this  does  not  prohibit  the   people   from  fishing 
from  Ijoats  with  lines  or  in  any  other  manner. 
Lincoln  V.  Davis,  53  Mich.,  37.">. 


At  common  law  the  owner  of  lands  bounded  by  waters 
where  the  tide  ebbed  and  flowed,  owned  to  high  water 
mark  only,  and  in  many  places  the  land  between  high  and 
low  water  mark  became  valuable  lisheries  for  shell  fish. 
Such  fisheries  were  held  to  belong  to  the  public,  subject 
to  the  pul)lic  control. 

Moulton  V.  Libby,  37  Me.,  47li. 


A   SEVERAL   FISHERY. 

A\'hen  (here  is  an  exclusive  right  of  fishery  it  is  called 
a  several  fishery.     The  owner  of  both  Itanks  of  a  private 


—152— 

water  course  has  a  several  fisliery.  It  was  for  some  time 
a  mooted  question  whether  a  several  fishery  could  be 
granted  separate  and  distinct  from  the  soil,  but  it  is  now 
established  by  judicial  decisions  that  one  may  have  a 
grant  of  a  fishery  and  have  no  other  distinct  interest  in  the 
freehold. 

Marshall  v.  Steam  Nav.  Co.,  11.3  E.  C.  L.,  7;53,  747. 
Beckmau  v.  Kraemer,  43  111.,  447. 


FREE  FISHERY   AND   COMMON   OF  FISHERY. 

Some  text  writers  have  sought  to  make  a  distinction 
between  a  free  fishery  and  a  common  of  fishery,  defining 
the  first  to  be  one  in  which  several  persons  have  a  right  to 
fish,  but  not  the  public  at  large,  and  that  the  latter  is  one 
where  the  public  generally  have  the  right  to  fish.  They 
are  practically  treated  as  syonymous  terms.  A  several 
fishery  is  not  necessarily  confined  to  one  single  person,  but 
a  free  fishery  implies,  as  the  nan.e  would  indicate,  that  it 
is  open  and  free  to  the  public,  a  common  of  fishery. 
Angell  oa  Water  Courses,  §§75,  76,  77. 


PROFIT    A    PRENDRE. 

KproM  a  prendre  is  the  right  which  the  owner  of  one 
tenement  has,  as  appurtenant  to  such  tenement,  to  enter 
upon  and  enjoy  some  privilege  in  another  tenement  of 
some  pecuniary  value  amounting  to  a  profit  in  the  soil. 
Hill  V.  Lord,  48  Me.,  83,  96. 


There  is  a  plain  distinction  between  an  easement  and 
a  profit  a  prendre.     An  easement  is  a  right  appurtenant 


—153— 

to  tlu'  tlomiiiMiit  c'stiite  to  inako  soiml'  u^c  oI"  I  lie  sjTvitMjt 
estate,  (lie  wluilt' .idvantajje  of  which  is  fouml  in  the  in- 
creased value  of  tlie  dominant  estate,  due  to  his  ri«^ht  to 
use  the  servient  estate  and  not  to  anythinfi  taken  out  of 
or  from  the  servient  estate,  wiiile  'A.  profit  a  prendre  is,  as 
the  term  implies,  a  rigiit  to  take  a  profit  I'roni  I  lie  servient 
estate. 

The  distin<:;uisliinn  characteristics  of  an  easement  and 
a  proiit  a  prendre  are  lud  always  on  the  surface.  For  in- 
stance, the  ri;i;ht  to  enter  upon  the  close  of  another,  and 
erect  booths  upon  certain  public  days,  or  to  play  at  any 
lawful  frames  or  sports,  and  to  derive  a  profit  therefrom  is 
an  easement, 

Abbott  V.  Weekly,  1  Lev.,  176. 
Fitch  V.  Rawliiig,  '1  H.  BIk.,  393. 


So  the  right  to  enter  upon  the  land  of  another  and 
take  water  from  a  running  stream  is  an  easement.  Hut  a 
right  to  enter  upon  the  land  of  atiother  and  take  water 
from  a  well  or  cistern  is  a  jirotit  a  j)rendre. 

MjiiiiiiiiK  V.  \Viis(i;ile,  81  E  C.  L.,  758. 
Ruce  V.  Want,  82  E.  C.  L.,  700. 


The  right  to  enter  upon  the  lands  of  another  Id  hunt, 
to  fish  in  an  unnavigal)le  stream,  to  take  sand  from  the 
beach,  or  to  take  seaweed  deposited  by  the  tide,  is  \\  profit 
a  prendre.. 

WaterH  v.  Lilly,  4  Pick.,  14o. 

Tiiiicuni  Fishing  Co.  v.  Carter.,  (il   Pa.  .St.,  21,  39. 

Pickering  v.  Noyes,  10  E.  C.  L.,  4liit. 

Jilewett  V.  Trigonnirig,  ;{(t  E.  C.  L.,  lo. 

ilill  V.  Lord,  48  Me.,  83,  99. 


LECTURE  XVII. 


LICENSE. 


You  must  distinguish  an  easement  from  a  license. 
This  is  not  always  an  easy  task,  for  the  distinction  be- 
tween the  two,  in  a  certain  class  of  cases,  is  exceedingly 
subtle, 

A  license  is  an  authority  or  power  to  do  a  particular 
act,  or  series  of  acts,  upon  another's  land,  without  possess- 
ing an  estate  therein,  amounting  to  a  mere  personal  right, 
determinable  at  the  will  of  him  who  gives  it,  not  transfer- 
able to  another  person  and  not  within  the  statute  of  frauds. 

Morrill  v.  Mackman,  24  Mich.,  279. 
Prince  v.  Case,  10  Coun.,  375. 
Wood  V.  Leadbitter,  13  M.  &  W.,  838. 
Fletcher  v.  Evans,  140  Mass.,  241. 

Being  essentially  a  power,  it  does  not  matter  whether 
it  is  created  by  a  parol  or  by  an  instrument  under  seal ;  in 
either  case  it  is  revocable  at  the  will  of  the  licensor. 

Simpkins  v.  Rogers,  lo  III.,  397. 
Mumford  v.  Whitney.  15  Wend.,  380. 
Pittman  v.  Poor,  38  Me.,  237. 
Wood  V.  Leadbitter,  13  M.  &  W.,  838. 


A  license  is  revoked  bv  the  death  of  the  licensor  or 


-155- 

hy  his  sale  of  the  property  to   which    the  license  pertains. 

Ruj?);les  v,  LcHure,  54  Pick.,  187. 

I)e  Huro  v.  Uiiitetl  Stiitess,  .'>  Wall.,  29!i,  Gl!7. 

Coke.  Lilt.,  52,  b. 

Rust  V.  Conrad,  47  Mich.,  44!l. 

Foote  V.  New  Haven,  «fec.,  2;i  Coon.,  214. 

Simpson  v.  "Wright,  21  111.,  Aj)p.,  (17. 

Biirksdale  v.  Hariston,  St   Va.,  704. 

liarry  v.  Worcester,  14.'i  Mass.,  47fj. 

Cox  V.  Leviston,  63  N.  H.,  283. 

Winne  v.  Ulster,  &c.,  37  Hun.,  340. 


A  license  is  limited  to  the  person  to  whom  it  is  given 
and  cannot  be  transferred  by  him  to  a  third  person.  Li- 
censes are  strictly  conlinecl  to  the  original  parties. 

Desloge  v.  Pearce,  MS  Mo.,  oSS. 
Cowles  V.  Kendall,  4  Foster,  364. 


Although  a  license  created  by  deed  is  revocable  at 
the  will  ol  the  licensor,  it  is  not  always  easy  to  determine 
whether  the  deed  creates  a  mere  i)Ower  or  an  interest  in 
land.  If  the  instrument,  considered  as  a  whole,  discloses 
an  intent  mi  the  part  of  the  grantor  to  convey  an  interest 
in  land,  it  is  not  a  license. 

Dodge  V.  McClintock,  47  N.  H.,  383. 

MeCrea  v.  Marsh,  12  Gray,  211. 

Hunt  V.  Romania,  S  Wheat.,  174. 

Muskett  V.  Hill,  35  E.  C.  L.,  272. 

The  Johnson  Iron  Co.  v.  The  Cambria,  &o.,  8  Casey,  241. 


When  a  license  is  an  incident  to  a  grant,  and  neces- 
sary to  the  enjoyment  of  the  grant,  it  is  !iot  to  be  consid 
ered  as  having  an  existence  apart    from  the  grant.     It  is 


—156— 

then  not  a  mere  license  and  is  not  revocable  at  will. 
While  the  grant  continues  the  license  exists.  For  in- 
stance, if  a  man  sells  a  stack  of  hay  in  his  field,  there 
passes  to  the  purchaser,  as  incident  to  the  title  and  right 
of  possession,  a  license  to  go  upon  the  land  and  remove  the 
hay  within  a  reasonable  time. 

Wood  V.  Leadbitter,  13  M.  &  W.,  838. 
Parish  v.  Kaapare,  109  Ind.,  586. 
Wood  V.  Manly,  39  E.  C  L.,  19. 
Patrick  v.  Cvlerick,  3  M.  &  W.,  482. 
Heath  v.  Randall,  4  Cush.,  195. 

It  may  be  stated  generally  that  where  a  license  is  nec- 
essary in  order  that  a  person  may  enjoy  an  interest  given 
him,  such  license  cannot  be  revoked  by  the  grantor  while 
the  interest  continues. 

Brown  v.  Harlow,  53  Mich.,  507. 

Rogers  v.  Cox,  96  Ind.,  157. 

Such  interest  must,  however,  be  a  valid  interest.  If 
the  interest  claimed  is  an  interest  in  lands  created  by 
parol,  and  such  large  sums  have  not  been  expended  as  will 
induce  the  court  to  treat  it  ;is  an  executed  contract,  the 
license  is  revocable. 

Taylor  v.  Gerrish,  59  N.  H.,  5G9. 
Croukhite  v.  Cronkhite,  94  N.  Y.,  323. 


So  that,  in  examining  the  question  whether  a  particu- 
lar license  or  power  is  or  is  not  revocable,  you  are  first  to 
determine  whether  it  stands  alone,  independent  and  by 
itself,  or  whether  it  is  incident  to  a  grant.  If  it  stands 
solitary  and  alone,  it  is  revokable  at  will,  no  matter  how 


— ir>7— 

it  may  have  been  created,  wliethei-  by  parol  or  Ijy  an  in- 
strument under  seal. 

Siujpkiiis  V.  K()>,'ers,  lo  III.,  307. 
Mumfoni  v.  Whitney,  lo  Weiul.,  380. 


When  a  license  is  incident  t(^  a  j^rant,  it  is  important 
to  ascertain  if  the  j^rant  is  a  valid  grant.  If  the  grantee 
claims  an  interest  in  real  estate,  it  must  be  created  by  an 
instrument  in  writing,  or  it  will  be  void  under  the  statute 
of  frauds.  For  instance,  a  parol  sale  of  standing  timber 
is  void  under  the  statute,  but  is  a  good  license  to  enter 
upon  the  lands  and  cut  timber  until  revoked,  but  it  is  re- 
vocable at  pleasure.  If,  however,  there  is  a  valid  sale  of 
the  (iml)er,  the  license  to  go  upon  the  land  and  cut  and 
remove  the  timber  is  incident  to  the  grant  and  irrevocable. 

Combe  v.  Burke,  2  Hill's,  (S.  C.)  534. 
Desloge  v.  Pearce,  38  Mo.,  588. 
Houston  V.  Laffee,  4G  N.  H.,  505. 


As  we  have  seen,  when  the  vendee  has  purchased 
property,  a  stack  of  hay  for  instance,  situated  on  the  land 
of  the  vendor,  he  has  an  irrevocable  license  to  enter  and 
remove  the  hay  ;  but  suppose,  on  the  other  hand,  he  has 
received  permission  to^  enter  u[)on  the  land  of  another 
and  stack  his  hay  there.  This  is  a  very  diflerent  case. 
To  enter  \\\>()n  land  and  remove  hay  gives  no  interest  in 
the  land,  but  to  enter  mton  land  for  the  i)urpose  of  placing 
hay  there,  and  keeping  it  there,  is  an  interest  in  land. 

Desloge  v.  Pearce,  38  Mo.,  588. 
MeCrea  v.  Marwh,  12  Gray,  211. 


Although  a  license  is  revocable  at  will,  it  is  a  defence 


—158— 

for  :ill  ;i(fs  done  in  imrsiiance  of  il,  while  it  remains  in 
lone.  Inilcfd,  when  the  license  empowers  another  to 
enter  upon  lands  and  erect  strnctiires  there,  the  licensee  is 
not  only  not  a  trespasser  in  ;j:oini:  upon  tlie  land  and  erect- 
iufx,  the  structures,  hut  upon  revocation  of  sucdi  a  license 
he  will  still  have,  lor  a  reasonable  time,  the  rijLdit  to  go 
ui)on  the  land  ami  lemove  his  property. 

Pierre|)()iit  v.  iiarnard,  2  8el.,  271). 

Riddle  v.  Brown,  20  Alti.,  412. 

Bogert  V.  Haight,  20  Barb.,  251. 

Smith  V.  Goulding,  6  Cush.,  154. 

Spalding.,  v.  Archabald,  52  Mich.  3G5. 

As  a  corrollary  to  the  last  proposition,  after  the  license 
has  been  revoked,  the  licensee  cannot  be  compelled  to  re- 
store the  licensor's  land  to  the  condition  it  was  in  before 
the  acts  done  under  the  license.  For  instance,  if  he  was 
authorized  to  dis  a  ditch  and  did  so  before  the  license  was 
revoked,  he  cannot  be  compelled  to  fill  it  up.  For  the 
same  reason,  it  is  held  that  when  the  licensee  erects  a 
buildini!;  upon  his  own  premises  which  interfere  with  some 
rig;ht  of  the  licensor,  he  cannot  be  compelled  afterwards 
to  remove  it. 

Morse  v.  Copeland,  2  Gray,  302. 
Woodward  v.  Seeley,  11  111.,  1">7. 

There  is  anotlier  "-lass  ol  cases  in  which  the  rights  of 
parties  are  uncertain  and  shifting.  A  mere  naked  license 
may,  through  the  conduct  and  acts  of  the  parties,  bud  and 
blossom  into  an  irrevocable  contract.  It  is  a  license  to- 
day, an  easement  to-morrow. 

This  may  be  due  to  an  estopel  en  pais^  as  where  the 
licensor  permits   the   licensee  to  do  some  act  upon  the 


-159— 

li(MMise«*N  promises  wliidi  ilestroys  or  interferes  witli  some 
ri;,'lit  w  lii<li  tlif  licensor  had  in  tlutse  premises  ao  appur- 
tenant lo  liis  own. 

Winter  v.  Hrockwtll.  H  Kast/dm. 
LiggiuH  V.  Inge,  et  al.,  12  E.  C  L.,  2n7. 

Wiien  the  lifense  is  in  ell^'ct  an  oiler  to  sell,  and  there 
has  been  an  aci-eptance  hy  a  pari  performance,  the  license 
cannot  l»e  revoked.     l*'or  inslaiK-e,  if  a  jx'rson  iiives  a  rail- 
road comi)any  j»ennission  to  enter  upon  his  lands  and  con- 
struct a  road,  such   license,  after  the  road  is  constructed 
cannot  l»e  revoked. 

IJuker  V.  Cluc'iigo,  R.  I.  &  P.  R.  U.,  '.T  Mo,,  lit).''). 
R.  U.  V.  liuttle,  W  N.  C,  540. 
Horiiback  v.  It.  It.,  20  Ohio  St.,  81. 
Earl  of  Jersy  v.  H.  V   i\:  1).,  Co.,  L.  It.,  7  E<i.,  409. 
Curiipl.illa-.  I.  it  V.  R.  R.,  1H>  Iiid.,  4!mi. 
Harlow  V.  n..iijr|,t„ii   ,S:  o.  R.  R.,    \\    Midi.,  .(.'jt;. 
-S.  It.  R.  V.  Mit.-liell,  0'.(  (ia.,  114. 
T.  &  St.  L.  It.  R.  V.  .Jarrell,  tlO  Te.x.,  l.'G7. 
Siiiiiiion.s  V.  Morehousi',  S.s  Intl.,  ;{!»!. 

Where  the  licensee  has,  on  the  strength  <tf'  the  license 
and  with  the  licensor's  kno\vledj;e,  expended  larji;e  sums 
of  money,  and  he  would  sulFer  j^reat  and  irreparable  loss 
if  the  license  were  revoked,  many  of  the  courts  have  held 
that  the  licen.se  was  in  elfect  a  contract,  and  the  e.xpendi- 
ture  of  money  was  an  execution  of  such  contract  which 
to<d\  it  out  of  the  statute  of  frauds. 

Rerick  v.  Kern,  14  S.  &  R.,  207. 
Snowden  v.  Wllji.s,  l!t  I  ml.,  to. 
WickersliaiM  v.  Orr,  0  Iowa,  2").'{. 
Russell  V.  lluhbani,  .V.i  111.,  ',i:i'>. 
Lee  V.  McLeotl,  12  Nev.,  2.S0. 
Itaritan  v.  Veghte,  21  N.  .J.  E<i.,  4G3. 


—160— 

It  is  lu'ld,  liowoviT,  in  othor  states,  that  a  mere  license 
cannot  l)y  tlie  expendilure  ot  money  by  tlie  licensee  be 
developed  into  a  contract. 

Janiieson  v.  Millenian,  3  Duer,  2.55. 

Prince  v.  Case,  10  Conn.,  375. 

Haya  v.  Richardson,  1  Gill.  &  J.  (Md.),  3GG. 

Stevens  v.  Fitch,  11  Mete,  248. 

Cook  V.  Stearns,  11  Mass.,  533. 


In  this  state  the  qnestion  is  K^lt  in  donl)t. 
Maxwell  v.  Bay  City,  &c.,  41  Mich.,  453,  407. 

When,  however,  both  parties  can  Ije  placed  in  statu 
quo  without  serious  detriment  to  either,  what  was  a  license 
in  its  inception  will  not  be  treated  as  a  contract  when  ex- 
ecuted, and  may  be  revoked  at  any  time. 

Druse  v,  Wheeler,  22  Mich.,  439. 
Weinenian  v.  Lucksinger,  84  N.  Y.,  31. 
Maxwell  v.  Bay  City,  41  Mich.,  453. 
St.  Louis  V.  Wiggins,  112  111.,  384. 
Rayner  v.  Nugent,  60  Md.,  515. 

Courts  have  sometimes  been  disposed  to  regard  acts 
done  under  a  license  as  constituting  a  basis  for  a  claim  to 
an  easement  l)y  adverse  user. 

House  V.  Mongomery,  10  Mo.  App.,  170. 
Nichols  V.  Wentworth,  100  N.  Y.,  455. 


CONTENTS. 


LECTURE  I. 

FixTURKS.— Definition.  Wiiiit  constitutt'?*  a  Jixture.  Actual 
Hiinexation.  Constructive  unuexation.  Ailaptatioa  to  use.  In- 
tention to  make  tlie  lixtnri'  a  ptMinaiiciit  addition   to  the  realty. 

LECTURE  IL 

Fixtures,  Contcnued. — Fixtures  annexed  by  owner  of 
realty.  Character  of  fixtures  as  between  vendor  of  cliattle  and 
mortgagee  of  realty.  Fixtures  wrongfully  annexed  to  realty. 
Ornamental  and  iionsehold  lixtures. 

LECTURIO  III. 
Fixtures,  Continued.— Charaeter  of,  as  between  liandlord 
and  Tenant.     What  fixtures  may  be  removed  by  tenant.     Wiien 
tliey  may  lie  removed.     Riiilroail  rolling,'  stock. 

LECTUKK   IV. 

Easement.— Delinition.  Kssential  nualities.  Continuous 
and  discountinuous  ea.Hemenls.  How  createtl- by  express  grant, 
im|>lied  grant  and  imitlied  reservation  in  grant,  by  prescription, 
by  custom. 


—102— 

LECTURE  V. 

Easemknts,  Continued.— Dominent  and  servient  estates. 
Rights  and  duties  of  the  owners  of  dominent  and  servient  estates. 
Classification  of  easements.     Public  ways.     How  established, 

LECTURE  Vr. 

Easements,  Continued.  — Public  ways.  Established  by 
user  or  prescription,  or  by  dedication,  or  exercise  of  right  of  emi- 
nent domain.     Duty  of  public  to  keep  public  ways  in  repair 

LECTURE  VII. 

Easements,  Continued.— Private  ways.  Created  by  grant, 
or  reservation,  by  prescription.     Ways  of  necessity. 

LECTURE  Vril. 

Easements,  Continued.— Ways  now  extinguised— by  re- 
lease, by  non-user,  by  exercise  of  right  of  eminent  domain,  by 
unity  of  title.  Remedy  for  obstruction  to  private  ways.  Ease- 
ments in  light  ami  air.  Right  to  lateral  support.  Natural  and 
artificial  use  of  land. 

LECTURE  IX. 

Easements,  Continued.— Lateral  support.  Rules  govern- 
ing liability  of  persons  making  excavations  for  damages  caused 
thereby.     Subjacent  support  of  land.     Party  walls,  liow  owned. 

LECTURE  X. 

Easements,  Continued.— Who  required  to  repair  party 
walls.  When  party  wall  may  be  rebuilt  and  when  not.  Con- 
tracts with  reference  to  party  walls.  Easements  of  support  when 
several  i)ersons  own  same  tenement. 


— 1C3— 

LECTURE  Xr. 
EaSKMKNTS,  CONTINUKI*.  — Purtitioii  fcllceH. 

LECTURE    XII. 
Easkmknts,    C'ontinuki).— Surfat-e    water.      Conuiioii    and 
(•ivil  law  rule  U8  tori|^h(  of  drainage  of  surlace  water.    Subterru- 
iiean  waters.     Wells  and  spriii^a.     Eaves  <lri|». 

LECTURE  XIII. 

Easemicnts,  Contixukd.— Water  courseH.  Navigable  rivers, 
their  claasiticution,  Riparian  owners.  Islands.  Allnvion.  Re- 
liction.    Property  in  water  courses. 

LECTURE  XIV. 

Easkments,  Continued. — The  use  of  water  as  a  motive 
power.     Rigiits  of  mill  owners.     Pulution  of  water,  etc. 

LECTURES  XV. 

Easements,  Continued, — Definition  of  navigable  rivers  in 
this  country.  Rights  of  the  public  in  navigable  rivers.  Rights 
ofrii)arian  owner.     Ownership  of  the  bed  of  the  stream.     Lakes. 

LECTURE  XVI. 

#]asements,  Continued. — Rights  of  Jishing.  Several  fish- 
ery.    Free  fishery  and  common  of  fishery.     Pro/it  a  jtrendre. 

LECTURK  XVII. 
Easements,   Continued.— License.      Distinction    between 
liceuse  and  easement.    License  coupled  with  an  interest.    License 
may  become  an  easement. 


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